[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]
CHINESE INTERROGATION VS. CONGRESSIONAL OVERSIGHT: THE UIGHURS AT
GUANTANAMO
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON INTERNATIONAL ORGANIZATIONS, HUMAN RIGHTS AND OVERSIGHT
OF THE
COMMITTEE ON FOREIGN AFFAIRS
HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
JULY 16, 2009
__________
Serial No. 111-53
__________
Printed for the use of the Committee on Foreign Affairs
Available via the World Wide Web: http://www.foreignaffairs.house.gov/
----------
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COMMITTEE ON FOREIGN AFFAIRS
HOWARD L. BERMAN, California, Chairman
GARY L. ACKERMAN, New York ILEANA ROS-LEHTINEN, Florida
ENI F.H. FALEOMAVAEGA, American CHRISTOPHER H. SMITH, New Jersey
Samoa DAN BURTON, Indiana
DONALD M. PAYNE, New Jersey ELTON GALLEGLY, California
BRAD SHERMAN, California DANA ROHRABACHER, California
ROBERT WEXLER, Florida DONALD A. MANZULLO, Illinois
ELIOT L. ENGEL, New York EDWARD R. ROYCE, California
BILL DELAHUNT, Massachusetts RON PAUL, Texas
GREGORY W. MEEKS, New York JEFF FLAKE, Arizona
DIANE E. WATSON, California MIKE PENCE, Indiana
RUSS CARNAHAN, Missouri JOE WILSON, South Carolina
ALBIO SIRES, New Jersey JOHN BOOZMAN, Arkansas
GERALD E. CONNOLLY, Virginia J. GRESHAM BARRETT, South Carolina
MICHAEL E. McMAHON, New York CONNIE MACK, Florida
JOHN S. TANNER, Tennessee JEFF FORTENBERRY, Nebraska
GENE GREEN, Texas MICHAEL T. McCAUL, Texas
LYNN WOOLSEY, California TED POE, Texas
SHEILA JACKSON LEE, Texas BOB INGLIS, South Carolina
BARBARA LEE, California GUS BILIRAKIS, Florida
SHELLEY BERKLEY, Nevada
JOSEPH CROWLEY, New York
MIKE ROSS, Arkansas
BRAD MILLER, North Carolina
DAVID SCOTT, Georgia
JIM COSTA, California
KEITH ELLISON, Minnesota
GABRIELLE GIFFORDS, Arizona
RON KLEIN, Florida
Richard J. Kessler, Staff Director
Yleem Poblete, Republican Staff Director
------
Subcommittee on International Organizations,
Human Rights and Oversight
BILL DELAHUNT, Massachusetts, Chairman
RUSS CARNAHAN, Missouri DANA ROHRABACHER, California
KEITH ELLISON, Minnesota RON PAUL, Texas
DONALD M. PAYNE, New Jersey TED POE, Texas
ROBERT WEXLER, Florida
Cliff Stammerman, Subcommittee Staff Director
Paul Berkowitz, Republican Professional Staff Member
Brian Forni, Staff Associate
C O N T E N T S
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Page
WITNESSES
Mr. Alan Liotta, Principal Director, Detainee Affairs, Department
of Defense..................................................... 15
Bruce Fein, Esq., Principal, The Litchfield Group................ 42
Jason Pinney, Esq., Counsel to Uighur Detainees, Bingham
McCutchen, LLP................................................. 50
Mr. Tom Parker, Policy Director, Counter-Terrorism and Human
Rights, Amnesty International USA.............................. 63
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
The Honorable Bill Delahunt, a Representative in Congress from
the Commonwealth of Massachusetts, and Chairman, Subcommittee
on International Organizations, Human Rights and Oversight:
Written testimony of former Uighur detainees................... 2
Article by David Keene, ``The Uighur dilemma,'' The Hill, dated
July 13, 2009................................................ 76
Mr. Alan Liotta: Prepared statement.............................. 19
Bruce Fein, Esq.: Prepared statement............................. 46
Jason Pinney, Esq.: Prepared statement........................... 57
Mr. Tom Parker: Prepared statement............................... 68
APPENDIX
Hearing notice................................................... 80
Hearing minutes.................................................. 81
CHINESE INTERROGATION VS.
CONGRESSIONAL OVERSIGHT:
THE UIGHURS AT GUANTANAMO
----------
THURSDAY, JULY 16, 2009
House of Representatives,
Subcommittee on International Organizations,
Human Rights and Oversight,
Committee on Foreign Affairs,
Washington, DC.
The subcommittee met, pursuant to notice, at 10:13 a.m. in
room 2172, Rayburn House Office Building, Hon. William Delahunt
(chairman of the subcommittee) presiding.
Mr. Delahunt. This hearing will come to order. First let me
welcome the vice chair of the Subcommittee on Oversight, Mr.
Carnahan, sitting to my right.
And we are joined by two colleagues, Congressman Jim Moran
from Virginia, who serves on the Appropriations Committee and
has an interest in this particular issue and is a senior member
of that committee. We are also joined by our colleague from the
Armed Services Committee who chairs the relevant subcommittee
of that particular body, Mr. Abercrombie of Hawaii. Welcome to
both of you gentlemen.
And of course I am joined by my good friend from
California, the ranking member of this committee, Mr.
Rohrabacher. We also want to welcome his new aide, Mr. Manyon,
who is pinch hitting for Paul Berkowitz, who will return
sometime in August I understand.
This is the third hearing that this committee has held on
the plight of the Uighurs both in China and those 22 Uighurs
formerly and currently detained at Guantanamo Bay. For those
who are unfamiliar, the Uighurs are a Muslim minority that live
in northwestern China. For years they have been persecuted and
oppressed by the Communist Chinese regime.
It came to the committee's attention that in September
2002, Communist Chinese agents were welcomed to Guantanamo Bay
for a period of between 7 and 10 days for the purpose of
interrogating the group of 22 Uighurs.
It is important to note that in anticipation of the arrival
of the Chinese delegation, the Inspector General of the
Department of Justice here in Washington reported that American
forces softened up the Uighurs detainees by routinely waking
them up at 15 minute intervals the night before.
It is the committee's intention to provide a venue, whether
here in Washington or elsewhere, for these men who have fled
Communist Chinese persecution to come forward and testify so
that our colleagues and the American people can have an
opportunity to hear them firsthand without filter and make
their own judgments. Until that happens, the committee has been
provided with statements through their counsel from three
former Uighur detainees who are now currently residing in
Albania and Bermuda.
I have reviewed these statements and find them profoundly
disturbing, and I believe that the American people will share
those sentiments. I ask unanimous consent to enter their
testimony into the records of the committee.
[No response.]
Mr. Delahunt. Hearing no objection, it is so ordered.
[The information referred to follows:]Bingham.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Delahunt. The Chinese delegation interrogated each of
the 22 Uighurs. All 22 told consistent stories of intimidation
and threats by these Communist agents. They also reported that
their files, which included their real names and that of their
families back in China, were turned over to the Chinese by
American personnel.
Imagine the fear of these men for their families as the
Communist Chinese Government routinely targets not only
dissidents, but also their family members. We have heard before
from Ms. Kadeer, who was nominated three times for a Nobel
Peace Prize, who was the target of the Chinese Communist
Government, who after she left, her two sons were incarcerated
and still are.
To meet our oversight responsibilities, the ranking member
and myself requested permission from the Bush Administration to
fly to Guantanamo to meet with those very same Uighur men that
the Chinese had full, unfettered access to. Our request was
denied, and we never received a satisfactory explanation for
why our visit was refused.
The Department of Defense, however, provided a statement to
Fox News, which I will now read into the record and you can see
on the Floor to my right. This was the statement as reported by
Fox News:
``We have permitted many countries from which these
detainees are from to visit 1] to see that they are
being treated humanely and 2] to help us understand who
they are and to provide us with insight and information
about the detainees. Foreign nationals are permitted to
come in. They help us understand who these people are
and what they are involved in, and that includes
official delegations from their country of
origin.'' deg.
``But Congressmen, the general public, media are not
permitted to question detainees. It can only be done in
an official capacity, and no Congressman can
interrogate or question detainees because it is not
part of their oversight responsibility.''
That was the statement that was secured by Fox News.
Well, let me first address the issue of oversight
responsibility. I want to be very clear. There was no
congressional oversight during the Bush-Cheney Administration.
It simply didn't exist. As former Senator Chuck Hagel stated,
the Bush-Cheney Administration treated Congress as a
constitutional nuisance. Well, that is not going to happen any
longer.
I reject any suggestion that the Executive can define what
constitutes congressional oversight. It is not the prerogative
of the Executive to determine the role of the first branch of
government. I am confident that this position is shared by
most, if not all, of my colleagues in the House.
Things have changed. This is the new Congress, and we have
a new President. And I want to acknowledge that the Department
of Defense representative is present. I could speculate that if
this was prior to January 20 of this year our invitation to
testify would have been simply ignored as it was in the past,
so we are glad you are here, Mr. Liotta.
This committee intends to vigorously exercise the oversight
responsibility explicitly tasked to it by the House of
Representatives not for purposes of confrontation or with
intention to embarrass, but to ensure that we do not make the
mistakes or repeat them that have been made in the past on any
issue and to ensure that a thorough policy review can be made
available to our colleagues.
So as I said, I am pleased to welcome Mr. Liotta here today
so we can explore the policy of the Department of Defense to
permit governments like Communist China to interrogate
detainees in United States custody.
I would point out that this issue is particularly prescient
in light of the recent events in the Uighur Autonomous Region
over the course of the past several weeks. The atrocities now
taking place in China are only further evidence of the
oppression and persecution of the Uighur people.
As the 2008 Human Rights Report published by our own State
Department confirms, the recent events in the Uighur Autonomous
Region are not new or novel to the Uighur people. Human rights
violations against the Uighurs have been meticulously
documented by our own State Department and the Commission on
International Religious Freedom, yet the Department of Defense,
led by then Secretary of Defense Donald Rumsfeld, welcomed a
Communist Chinese delegation to Guantanamo in September 2002
and gave them full access to a minority which they have
relentlessly persecuted.
It is our purpose to determine why the Pentagon made this
choice because in light of what we know about the Communist
Chinese relationship with the Uighurs, their stated explanation
makes no sense to me. Can we really believe that the Communist
Chinese regime cared if the Uighurs were being treated
humanely? I realize this incident occurred in 2002. The
question now is, is this policy still in effect? Has it been
changed? Is it being reassessed by the Obama Administration?
Let us remember the words of our first President, George
Washington, who once wrote that he hoped that America, and
these are his words, ``might become a safe and agreeable asylum
to the virtuous and persecuted part of mankind, to whatever
nation they might belong.'' Well, by allowing the Chinese
Communists into our detention facility we became other than
something than a safe and agreeable asylum.
Last June, Mr. Rohrabacher and myself sent a letter to the
Bush Administration requesting that the Uighurs then at
Guantanamo be promptly paroled into the United States. In the
near future, I, and I am sure he will join me, will be sending
a similar letter that I hope many of our colleagues will join
in to President Obama calling on him and his Administration to
parole and resettle at least some of the Uighurs at Guantanamo
into the United States.
As was stated at our first hearing by former Deputy
Assistant Secretary of State for East Asian and Pacific Affairs
who was intimately involved during the Bush Administration with
the issues attendant to Guantanamo, and this was Secretary
Shriver and these were his words: The situation of the Uighurs
can be described as nothing short of tragic, and these men were
wrongly imprisoned.
It is now time, I would suggest, to seize this opportunity
to fulfill Washington's dream and once again become a safe and
agreeable asylum for the virtuous and persecuted part of
mankind.
Now let me turn to my friend and ranking member, Mr.
Rohrabacher, for any statements he may care to make. Dana?
Mr. Rohrabacher. Thank you very much, Mr. Chairman. Before
we get into this hearing, I think it is important for me
personally to note that I am not now, nor have I ever been,
opposed to Guantanamo as a holding spot for terrorist suspects
during the war with Radical Islam.
I think that it was and is a logical location, and I
disagree with the idea that terrorist prisoners especially in a
wartime situation, which we face now with Radical Islam having
declared war on the United States, having slaughtered thousands
of our people, that I find I also disagree with the idea that
everyone picked up in that situation deserves the same rights
as American citizens do here at home during criminal
investigations. So right off the bat let me note that.
Let me also go even further that unlike many, most of my
colleagues, I do not even oppose enhanced interrogation of
prisoners taken during this war with Radical Islam. If indeed
physical force is used against a prisoner that we are certain
and it ends up saving the lives of thousands of Americans, I
would expect that our protectors use enhanced interrogation,
physical force, to save the lives of my family and American
families throughout our country.
I know there are others who disagree with this, and I
remember we had a hearing and there was a back and forth on
this very issue and I suggested to those people who were
screaming at me from the audience that I would hope that their
families are the ones that would bear the burden of the
consequences if that policy is adopted.
I would suggest that each and every one of us has to
examine our hearts and say okay, will we really let our mothers
and fathers and our children be slaughtered because we will not
use physical force on someone like Khalid Sheikh Mohammed, who
was the mastermind of 9/11.
So with that preface so that people know that I am not a
bleeding heart liberal or anything like that----
Mr. Abercrombie. Mr. Chairman?
Mr. Delahunt. Like you have never been accused of that.
Mr. Abercrombie. Mr. Chairman?
Mr. Delahunt. Yes, Mr. Abercrombie?
Mr. Abercrombie. I don't think there is any danger of that.
Mr. Rohrabacher. Well, with that said, let me then get into
the subject of today's hearing.
If indeed you hold the positions that I hold, I think it is
incumbent upon those of us who believe that those are the
standards that we need to operate on during a wartime situation
where again thousands of our own private citizens have been
slaughtered and we have an enemy that is willing to slaughter
even more if they had a chance.
We realize that we have that standard of behavior and
relationship to that threat. If you believe in that standard of
behavior, it behooves those of us who advocate it to be
committed to truth and committed to honesty and to understand
when you have a standard like that that you must be so careful
about your analyzing what the truth of any situation is that
you are willing to admit mistakes and correct them.
In this case what we have is a mistake that our Government
made during this war with Radical Islam. We offered what? We
offered $5,000 a head for people in Afghanistan to turn in
people that were suspicious and then immediately took these
Uighurs who were turned in for $5,000 a head who were not
captured on the battlefield but instead were living in a
village away from the battlefield, people that never
participated in combat against the United States, and we took
them to Guantanamo.
It was a mistake to begin with to do that and perhaps even
a worse mistake that once the interrogations happened and from
what we have gleaned from information already is that once
interrogations happened even the interrogators realized these
were not hard core Radical Islamicists who hate America. We
should have admitted the mistake at that moment and corrected
it. Somebody was covering up their mistake and their mistake in
judgment.
So if we are to succeed, I think we have to have a tough
standard, and if we are to be honest and if we are to be a
country of integrity we must make sure that we are brutally
honest about mistakes that are made within those standards.
So first of all, I would like to express my personal and
deep sadness and regret and apologies to the Uighurs who were
treated inhumanely and thoughtlessly by our Government in being
turned over to Chinese interrogators working for a dictatorship
that oppresses their people.
I believe, and I am sure that my chairman believes this as
well, that it should be the highest priority of this
subcommittee to find out exactly who were the American
officials that agreed to this interrogation, and we need
perhaps to have an understanding why after the initial
interrogations before the Chinese got there that we proceeded
to do something like this.
We need to know who the American officials who made these
decisions were, and again if we are going to have a high
standard that we have or a tough standard while we are fighting
this war with Radical Islam we need to make sure that those
making the decisions are held accountable for those decisions
and insist on a high standard of honesty and truth.
That is why I was one of the few Republicans that voted in
favor of having interrogations of prisoners, of all prisoners,
to be videotaped because you then have proof of exactly--you
have honesty. You have truth verified.
I don't think we have any apologies of, as I say, using
enhanced interrogation and having it videotaped if you have
someone who is involved with a conspiracy to murder our people,
but we have a lot to apologize about if we are just acting
basically like an unruly mob rather than an organized effort of
government to protect our citizens.
We have a right to understand because we are not an unruly
mob. There are people who make decisions in positions of
authority. We need to know who those people were in terms of
making this decision that the Uighurs would be interrogated by
Communist Chinese intelligence agents.
I can only imagine how the Uighurs felt when American
soldiers, people who they had actually looked to with great
hope. Their only hope of the Uighurs were that America would
stand true to its principles of liberty, we believe that human
rights, that people are granted rights, all people are granted
rights.
You can only imagine the Uighurs understood this. They know
that is what America believes, and then you have American
soldiers tasked with the job of holding them down while the
Chinese are interrogating them and holding them in place so the
Chinese can take pictures of them and extract information about
their families.
I want to know who was to blame for that decision, who
takes credit for that decision. We do know that the soldiers
themselves were following orders, and I would suggest to the
Uighur community they should not lose faith in the average
American and the Americans who are in uniform who reflect our
values as a people.
They were following their orders, but those orders
originated from officials in Washington, and I believe those
officials should not be holding the job that they hold. They
should be held accountable for this important decision.
So that is number one. Let us remember that the decisions
of our public officials in regard to the Uighurs has some
relationship to the decisions that our Government has been
taking about China for the last 30 and 40 years, especially the
last 20 years.
China has been since Tiananmen Square a country that has
not been evolving into democracy, but has instead been a
country that is run by a gang of murderous thugs who have been
holding power with actually a more contracting grip on their
people and the freedoms of their people for 20 years.
Before Tiananmen Square, opening up relations and trying to
have more trade and more interaction with a country like this
was all right because they were going in the right direction.
They were opening up.
Well, the same officials that made the decision about the
Uighurs and permitting Chinese agents, intelligence agents, in
to question them are the same type of officials who have been
guiding American policy with this vicious dictatorship for the
last 20 years, and that policy is coming back now to hurt the
American people dramatically both economically, but also
throughout the world we see the Chinese Government allying
itself with again the other thugs in the world who control
their people and do not permit their people the freedoms that
we believe are inherently rights of all human beings.
So we need to know right now who are responsible for these
policies, and we are going to focus specifically on the
Uighurs, but I want to make sure everybody knows that does
relate to an overall policy with China.
With that said, I look forward to this hearing. I want to
thank my chairman for his diligence on this issue, and I am
very, very proud to serve as his ranking member.
Mr. Delahunt. Thank you, Dana.
I am going to call on Mr. Moran if he cares to make a
statement.
Mr. Moran. Thanks very much, Mr. Chairman. You in your
opening remarks mentioned the fact that I am on Defense
Appropriations, and in that role the chair of the Defense
Appropriations Committee assigned me several years ago actually
to take on the issue of Guantanamo, to go down, visit the
facility, talk to personnel, come up with a policy
recommendation for the committee that is required to fund
Guantanamo and to explain to the full committee why it is that
we would be providing the money for what purpose.
I did so. On each of the occasions I went to Guantanamo
with Pentagon personnel we were denied any access to the
prisoners. Basically we were treated to a dog and pony show,
although the second time it became far less comfortable for the
Guantanamo personnel than the first time as I knew what to
expect.
But this revelation that Chinese Communist intelligence
agents were granted access to the prisoners after the prisoners
had been told by our people that all their personal information
would be held confidential is a direct violation of the policy
that I was told we would be pursuing, that we would be
complying with, but it is also immoral to have done that,
knowing the way that the Chinese Communist Government treats
dissidents.
When we get into questions I am going to want to know the
disposition of the families of these Uighur detainees since we
put them in direct jeopardy by releasing personal information
of those families.
We know that in the last month about 200 Uighurs have been
executed by the Chinese Communist Government, and it seems to
me since we were directly involved in putting them into that
position of vulnerability that we need to know what the exact
status of those families is.
The analogy with Afghanistan is striking to me. In one
case, because it was in our interest to help people who were in
many cases deeply religious and thus deeply opposed to the
Soviet Communist Government, we armed them, gave them training
and all the support we could. And here in this case we have
been on the other side, the side of Communist dictatorship in
assisting them in repressing people who were primarily looking
for religious freedom within their country of origin, so I
think there are some inconsistencies in policy.
Mr. Chairman, it is entirely appropriate that you have this
hearing, and I trust that it is going to lead to a dramatic
transformation in the policy that you have exposed, so I thank
you, Mr. Chairman, for having the hearing.
Mr. Delahunt. Thank you, Mr. Moran.
Congressman Ted Poe of Texas?
Mr. Poe. Thank you, Mr. Chairman. I appreciate you holding
this hearing.
I too have been to Guantanamo Bay prison. Being a former
judge I have seen a lot of prisons and have sent people to
prison on frequent occasions. I, like the other members, wanted
to interact more with the people that were there, and of course
that was forbidden. You could not do that. And then lo and
behold, some foreign country, China, who has a horrible record
of the way it treats its own people, has access to prisoners
that are held in an American prison facility.
Now, that strikes me as very odd why we would let some
foreign country come in and interrogate basically our prisoners
and give them access to them and let them interrogate them for
their own intelligence reasons and not allow even Members of
Congress to get close to those prisoners and certainly not ask
them any questions.
Like the ranking member, I don't trust the Chinese. I know
they are our economic partners and we can't talk bad about them
because they own so much of American debt and may even end up
controlling our economy, but they treat their people in a very
rough manner, and American policy should not allow foreign
governments to come into our prisons and interrogate anybody.
It is none of their business. After all, they are our
prisoners.
I will yield back.
Mr. Delahunt. Yes. I thank the gentleman. I want to point
out and I would commend to him reviewing the statements that
were made by those three former detainees. I think it is
important to read that.
You weren't here, Congressman Poe, when I indicated that it
is the intention of the committee to provide a venue, whether
here in Washington or elsewhere, maybe via video link--I am not
sure--where we, Members of Congress, can hear directly without
a filter, without commentary these men so that we can make
judgments and that the American people can make judgments
because much has been said about the Uighurs by those I daresay
who are ill informed and who have done a disservice not just to
the Uighurs, but to what America stands for.
As I said, it is my belief, and I believe it is shared by
Mr. Rohrabacher. These men fled Communist persecution. I
daresay if they were Tibetans they would be sitting here in
this audience in front of us today. While I disagree with so
much with my ranking member, I applaud his courage and his
absolute perseverance to ascertain what the truth is because
that is what America is about.
It is the responsibility of this committee and other
oversight committees in Congress to do what we can working with
the respective departments and agencies in the executive branch
so that we can ascertain what policies exist and, more
importantly, how they are being implemented. I hope that we are
turning the page.
With that, let me see if the gentleman from Hawaii wishes
to make a statement. He doesn't.
Well, then let us proceed with our first panel, who is by
himself, but he is here, which is a step forward. Mr. Alan
Liotta is the principal director of detainee affairs for the
Department of Defense.
Mr. Liotta, welcome. I am happy that you are here, and
please proceed with your testimony.
STATEMENT OF MR. ALAN LIOTTA, PRINCIPAL DIRECTOR, DETAINEE
AFFAIRS, DEPARTMENT OF DEFENSE
Mr. Liotta. Thank you, and good morning, Mr. Chairman,
members of the subcommittee. I appreciate the opportunity to
discuss the Department of Defense's detention operations at
Guantanamo Bay.
To address the subcommittee's concerns, I would like to
speak briefly about the Department's policy of access to
detainees at Guantanamo, as well as the issue and challenges of
such visits. At the outset, I would like to note that we
currently hold fewer than 230 detainees at Guantanamo, less
than a third of the total number ever detained there.
With regard to our detention operations at Guantanamo, it
is undoubtedly the most transparent military detention center
anywhere in the world. Within the Department, we have worked
diligently to establish a state-of-the-art facility that
provides safe, humane, transparent and legal custody for each
detainee.
We have allowed numerous media outlets and human rights
groups access to the facilities to observe proceedings and to
participate in camp tours. We have also brought senior foreign
officials to Guantanamo to better understand detention
operations.
These visits continue, and we facilitate as much access as
logistically possible to the media and these other groups to
ensure transparency and accountability in our operations. Over
the past 7 years we have brought 52 U.S. Senators, 168
Representatives and 300 staff members to Guantanamo on official
congressional delegations.
Mr. Delahunt. Mr. Liotta, let me, and I respectfully want
to--I don't mean to interrupt you, but I want to ask you if
those 52 Senators, those Members of the House and those
staffers ever were allowed to interview any of the detainees at
the facility?
Mr. Liotta. They were not, Mr. Chairman, for reasons which
I will explain.
Mr. Delahunt. Okay. Thank you. Thank you.
Mr. Liotta. I have personally escorted more than a dozen of
these trips. Through these visits, as well as through
congressional testimony and briefings, we have provided our
respective oversight committees, as well as other dedicated and
interested Congressmen and Senators, a look into our
operations.
In every case, the visitors have expressed their
appreciation for the tremendous and outstanding work our young
men and women in uniform are doing in the most arduous of
circumstances. It is extremely stressful duty, yet these young
soldiers, sailors, airmen, marines and coast guardsmen do it
with pride and excellence every single day.
To ensure the safe and humane operations of all Department
of Defense detention facilities and to comply with our
obligations under international law, it is the policy of the
Department of Defense to limit access to detainees under our
legal control. This is not simply for detainees in Guantanamo,
but for those we also hold in Iraq and Afghanistan as well.
We do this for three principal reasons: First and foremost,
to ensure the safety of the detainees and U.S. personnel;
Second, to shield detainees from public curiosity to remain
consistent with the Geneva Conventions; and, third, to avoid
complications with ongoing litigation in U.S. courts.
Without question, the single greatest reason to limit
access to detainees is to provide for their personal safety, as
well as that of the guards and the military personnel who
interact with them on a daily basis.
It is not unique to Guantanamo that every interaction a
detainee has with an individual from outside the camp affects
not only that detainee, but all those who live in the same camp
with him. The arrival of individuals from outside the camp
changes the mood, the demeanor and the overall temperament of a
camp, in turn affecting the security dynamics within that camp.
Second, our international law principles warrant that we
limit access to detainees in our custody and control. The Third
and Fourth Geneva Conventions contemplate that nation states
shield detainees from the public eye and protect them from
public curiosity. The facilities at Guantanamo provide safe and
secure living conditions, and the Department of Defense has
determined that we simply will not permit a deliberate
departure from the principles of the Geneva Conventions.
Finally, as the subcommittee is well aware, almost every
detainee at Guantanamo is involved in some sort of litigation.
Allowing broad access to detainees would potentially complicate
and prolong these litigation proceedings by raising questions
about the presence of detainee counsel at interviews and the
possibility of calling members of congressional delegations as
witnesses in the litigation.
I do not wish to leave the subcommittee the impression,
however, that detainees are left alone and without contact. To
the contrary, the Department of Defense recognizes the unique
and primary role of the International Committee of the Red
Cross to have unfettered access to detainees under our control
and custody at Guantanamo, as well as in our theater detention
facilities in Iraq and Afghanistan.
Under the Geneva Conventions, nation states are required to
give officials from the ICRC access to detainees. Accordingly,
the United States grants the ICRC full access to all detainees
interned at Department of Defense theater detention facilities.
The ICRC conducts regular interviews with detainees to
ensure proper treatment and to facilitate communication with
their families. Our relationship with the ICRC is a productive
one and we greatly value their observations, insights and
recommendations. Senior Department officials meet regularly
with the ICRC to discus our detention operations and policies
and to address their concerns in a constructive and
confidential dialogue at all levels of the chain of command.
Our commitment to the ICRC to keep our dialogue with them
confidential requires that we handle all communication between
our Government and the ICRC as classified, but to ensure
effective congressional oversight, as well as access to ICRC
observations and recommendations, the Department provides
regular briefings to Congress on at least a quarterly basis.
During these briefings, the Department shares the entire
collection of correspondence exchanged between our Government
and their organization to provide insight into the full breadth
and scope of the Department's relationship and communications
with the ICRC. In this way we are able to ensure that we meet
our international obligation to maintain the ICRC's
relationship with those in our custody, while also providing
Congress access to the same information so they can exercise
effective oversight.
Depending on the circumstances, there are some occasions
when we will allow a foreign government access to a detainee if
that country is considering accepting the transfer of the
detainee for resettlement in their country. This is an
exception to policy and is approved on a case-by-case basis.
Similarly, some of the detainees at Guantanamo have
committed crimes in their homelands or other countries, or they
can be crucial witnesses in the trials of other terrorists. In
such instances, foreign governments have made and continue to
make requests to interview a specific detainee to assist in law
enforcement actions. If a foreign government requests a law
enforcement visit with a detainee, the Department evaluates
each request on a case-by-case basis to determine whether to
grant such access.
Finally, the United States Government has in the past
requested a foreign government's assistance in helping to
determine the identity of an individual we have captured or for
intelligence information they have about his terrorist links
and activity. Such foreign requests for access on these grounds
are extremely infrequent.
In addition, some foreign governments may request access to
a detainee to assist them in their own efforts to gain
intelligence to assist them in identifying and aborting
potential terrorist plots in their countries. When we receive
such requests, however, they are assessed on their individual
merits and in consultation with other appropriate U.S.
Government departments and agencies to determine whether such
access should be granted.
I would like to stress to the subcommittee that in each of
the set of circumstances I have described above when a decision
to grant access to foreign law enforcement and/or intelligence
officials is made it has been and currently remains
longstanding Department policy that visiting foreign officials
must agree that they will abide by all DoD policies, rules and
regulations.
This is codified in Department of Defense Directive 3115.09
and remains our policy in all of our military detention
facilities worldwide. Additionally, in all of the above-noted
cases, the foreign governments who are allowed access are
members of their nation's executive branch.
Finally, I would be remiss if I did not stress that the
Department also allows legal counsel access to their clients at
Guantanamo. The Department goes to extraordinary lengths to
facilitate attorney visits with their clients in detention
facilities and to hold productive and privileged meetings with
their clients in an environment that ensures the safety of the
detainee, the counsel and government and military personnel. In
2008, JTF-Guantanamo facilitated more than 1,800 legal visits
and phone calls.
To conclude, Mr. Chairman, our detention policies ensure
that detainees under the control of the Department of Defense
anywhere in the world are cared for humanely and in complete
compliance with our obligations under the laws of armed
conflict, applicable U.S. law and binding international
treaties.
I am proud of our outstanding service members who serve at
Guantanamo, in Afghanistan and in Iraq who are committed to
ensuring that our detention mission is carried out in a safe,
humane, legal and transparent manner while balancing the needs
of operational security. They deserve our gratitude.
This concludes my statement, Mr. Chairman. I would like to
thank you and the subcommittee for the subcommittee's time and
attention to this important topic. As the subcommittee's time
permits, I am prepared to respond to members' questions.
[The prepared statement of Mr. Liotta
follows:]Alan Liotta.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Delahunt. Thank you very much, Mr. Liotta.
I know he has a number of commitments, and I am going to go
first to the chairman of the Subcommittee on Land and Air
Forces of the House Armed Services Committee, Mr. Abercrombie,
for questions that he might want to post.
Mr. Abercrombie?
Mr. Abercrombie. Thank you very much, Mr. Chairman. I thank
the other members for their indulgence.
Mr. Liotta, aloha to you. Mr. Liotta, by way of full
disclosure to you for the questions, I am a former probation
officer, several years, including work at San Quentin Prison. I
am also familiar with prisons. I have handled everything from
traffic tickets to murder as an officer of the court, both
making recommendations and supervising recommendations about
probation and sentencing and supervision of felons.
That is where I find the testimony a bit strange. Please
forgive me. It is nothing personal, but could you just give me
very briefly your background in law enforcement, if there is
any?
Mr. Liotta. I am a current government official,
Congressman. I have no background in law enforcement.
Mr. Abercrombie. Okay. That doesn't mean that you are not
capable in this respect of giving definitive testimony.
In other words, do you direct this at Guantanamo--that is
what I am trying to get at actually--or are you the chief
administrative individual? It says principal director, Office
of Detainee Policy. Is that located here in Washington with the
Department of Defense?
Mr. Liotta. Yes, sir. It is at the Pentagon. I work for the
Under Secretary of Defense for Policy, Ms. Michelle Flournoy,
in the Office of Detainee Policy.
Mr. Abercrombie. And when did you start your position?
Mr. Liotta. I assumed the position in July 2004 when the
office was created.
Mr. Abercrombie. Okay. Very good. So then you have the
background. I mean the history. You embodied the history then
in your testimony.
Mr. Liotta. Not of the entire history of its existence, but
since that point.
Mr. Abercrombie. Since that point.
Mr. Liotta. Since that point. Yes, sir.
Mr. Abercrombie. Yes. Thank you very much. In that context
then I am a little concerned, the context I just outlined from
my own background. Separate and apart from the question of the
Geneva Conventions, which I was under the impression we said
did not necessarily apply at Guantanamo--perhaps that can be
explored a little bit later. I don't want to abuse my time.
But what did strike me here is on page 2 of your testimony,
your third point with regard to the reasons that you set forth
for the policies. Third, to avoid complications with ongoing
litigation in U.S. courts.
Again going to my own personal experience, I don't
understand how it is possible then to allow access of foreign
governments to these prisoners before they have been tried by
us. I understand completely the idea that you have enunciated
very clearly about the possibility of other governments having
an interest in terrorism within their borders, possible crimes
of one kind or another under the laws of those nations that may
have an interest in these individuals.
But you yourself indicate in your testimony that the
possibility if Members of Congress had been able to interview
any of these people, for example, that they could be called as
witnesses in litigation. Couldn't members of a foreign nation's
intelligence operations or law enforcement operations then be
called as witnesses if we then prosecuted someone in our
courts?
Mr. Liotta. Yes, Mr. Congressman. First I would like to
emphasize that the detainees that we hold at Guantanamo are
being held under the law of armed conflict, which is different
than criminal and the criminal proceedings associated with
that.
But I would have to say that in terms of the litigation
questions and the----
Mr. Abercrombie. I understand that, Mr. Liotta. Honestly, I
do. I am just referring to your testimony. You are saying one
of the reasons Members of Congress could not interview or have
a conversation with prisoners there is because they could be
possibly called as witnesses in litigation.
If that is the case, if you allow prior to prosecution of
these detainees members of a foreign government's intelligence
operation or law enforcement operation to interview them and
interrogate them, couldn't they be then called by legal counsel
as witnesses in a prosecution engaged in by the United States?
Mr. Liotta. That would be under the purview of the
Department of Justice, and I would not be qualified to respond
to that specifically, sir. I am not an attorney, and those
cases in litigation and the requirements are all handled by----
Mr. Abercrombie. Again, I don't want to be argumentative
with you, but this is your testimony. It is not mine. You are
saying that Members of Congress----
Well, did the Department of Justice say Members of Congress
couldn't do this interview? I am not quite sure. How is it
possible for Members of Congress to be involved in litigation
if they had been involved with an interrogation or an interview
with a detainee?
Why wouldn't the same principle apply then to those who
have done that from a foreign government?
Mr. Liotta. I would defer to the Department of Justice on
that.
Mr. Abercrombie. Okay.
Mr. Liotta. I would simply note that as I said at the
outset of my testimony, I wanted to identify some of the
challenges.
Mr. Abercrombie. You see where I think the difficulties
here are?
Mr. Liotta. I am sorry?
Mr. Abercrombie. I am very familiar with chain of custody,
with chain of custody in terms of evidence. I am very familiar
with it.
If you allow a third party to come in, I can't imagine--I
can't imagine--in any other prosecution, and you are talking
about armed conflict here, so even more important because you
are talking about possible war crimes and so on.
I can't imagine in an American court system you would allow
a third party to come in and interrogate somebody absent
attorneys, by the way, and not have that destroy the capacity
for having a trial that wouldn't be subject to a request for
dismissal. I just wonder. What is the rationale behind it?
Mr. Liotta. Congressman, I understand the question, but
again I would have to defer to the Department of Justice, which
is the----
Mr. Abercrombie. So do you have a memo or something from
the Department of Justice indicating that this procedure, these
set of procedures, is agreed to by the Attorney General?
Mr. Liotta. The Department of Justice is familiar with the
policy. Yes, sir.
Mr. Abercrombie. Well, that is not what I asked. Do you
have something in writing from the Department of Justice that
says allowing access to foreign governments by their
intelligence officials or law enforcement officials is
warranted or agreed to or will not in any way damage the
capacity of the United States to prosecute detainees?
Mr. Liotta. I would defer to the Department of Justice on
that language, sir.
Mr. Abercrombie. Okay. You say here law enforcement visits
are done on a case-by-case basis. Has any government been
turned down?
Mr. Liotta. Yes, sir.
Mr. Abercrombie. For what reason?
Mr. Liotta. I cannot get into that in an open hearing, but
I have offered to the subcommittee a classified briefing that
can provide the details of the countries that have asked for
visits, those that have been accepted, those that have been
denied.
Mr. Abercrombie. Okay. You say that they are assessed on
their individual merits in consultation with appropriate U.S.
Government departments and agencies. Do you consult with the
Department of Justice?
Mr. Liotta. We do, sir.
Mr. Abercrombie. And what other agencies?
Mr. Liotta. A wide variety of agencies, sir. The Department
of State might be consulted. The intelligence community members
might be consulted. It would depend on the nature of the
request, sir.
Mr. Abercrombie. And who does this determination in these
agencies? Is there your equivalent somewhere in these agencies?
Mr. Liotta. There is, sir. Most of the agencies have an
equivalent. Yes, sir. Someone is responsible for detainees at
Guantanamo.
Mr. Abercrombie. And none of them have indicated that they
are fearful that if you allow this kind of thing that it could
interfere with the capacity to have a successful prosecution
should you feel one is warranted?
Mr. Liotta. I believe the other agencies would also defer
to the Department of Justice on that point, sir.
Mr. Abercrombie. Okay. Just a couple more questions. You
say that foreign law enforcement and intelligence officials
will abide by all DoD policies, rules and procedures.
What process do you engage in to make sure that these
people are familiar with DoD Directive 3115.09, and what do you
do to determine that they will follow up?
Mr. Liotta. There are briefings ahead of time. Sessions are
monitored, and they would be interrupted if there was a
violation.
Mr. Abercrombie. Interrupted by who?
Mr. Liotta. By the United States side.
Mr. Abercrombie. And who is the United States side?
Mr. Liotta. It would depend on the defense. If it was at
Guantanamo, it would be the guard force that was involved.
Mr. Abercrombie. The guard force?
Mr. Liotta. Yes, sir.
Mr. Abercrombie. Are you talking about troops?
Mr. Liotta. Or the SJA, the legal counsel down there. It
would depend.
Mr. Abercrombie. Okay. The legal counsel for the DoD?
Mr. Liotta. Yes, sir. For the Joint Task Force.
Mr. Abercrombie. Yes. Now, in these interrogations that
take place is legal counsel provided to the detainee?
Mr. Liotta. Again, sir, I have offered a classified
briefing, and I would be happy to discuss the parameters and
how these meetings are conducted in a classified session.
Mr. Abercrombie. I don't want to be argumentative, but I am
not quite sure. I don't think my question is a classified
question.
Do you mean whether or not the detainees have legal counsel
during an interrogation by a foreign national, that is
classified?
Mr. Liotta. I would prefer to provide that information in a
classified briefing, sir, as part of the comprehensive briefing
program. Yes, sir.
Mr. Abercrombie. Excuse me, Mr. Liotta. I know what you
would prefer to do, but that is not the question I asked.
I have some difficulty. Is it a classified element as to
whether or not--let me rephrase it. How is it possible to be
classified in nature, the answer to the question of whether or
not the detainee has his or her legal counsel available during
the interrogation by a foreign national?
The reason I ask that question, again not to be
provocative, is that you have raised in your testimony the
possibility that a Member of Congress even talking to someone,
that that could obviate the capacity to pursue a successful
prosecution and so legal counsel would be available. As I
understand it, legal counsel was available at Nuremberg.
The fact that they are detainees under the armed combat
provisions doesn't obviate the necessity of having legal
counsel available if a third party was making interrogation.
Mr. Liotta. If I could, I would like to clarify. I don't
believe that I said that it would complicate the prosecutions.
I said it would complicate litigation proceedings, which
there are a wide variety of that--habeas counsel proceedings,
lots of other kinds of proceedings--outside of straight
prosecutions.
Mr. Abercrombie. Yes.
Mr. Liotta. It is the concern that it would complicate
those types of proceedings. That it could potentially
complicate those proceedings is one of the three concerns that
I listed.
Mr. Abercrombie. That is what I want to know. Was legal
counsel available to the detainees if they were going to be
subject to third party interrogation?
Mr. Liotta. Again, sir, I would defer that to a classified
briefing.
Mr. Abercrombie. Okay. I don't think it is classified
information, but if you don't want to do it, we will get it. I
will leave that up to the chairman.
I just want to quote to you on page 3, ``Finally, I would
be remiss if I did not stress that DoD also allows legal
counsel access to their clients at Guantanamo.''
I will ask you once again. Did these detainees who were
interviewed, whether it was by the Chinese or anybody else,
have legal counsel at Guantanamo during these interrogations? I
am raising the question because I am reading your testimony,
not because I am trying to look to put you in a difficult
position.
I am trying to understand whether I have a clear
understanding of what I believe to be the clear implications of
your testimony.
Mr. Liotta. Yes, sir. I understand. And I apologize if my
answer is not clear, and I would clarify this for you.
In the testimony that you just read, my reference to legal
counsel is in reference to their cases involving habeas
litigation, those that are being prosecuted through military
commissions, and other examples where there would be legal
counsel involved along those grounds. That is what I was
referring to in that statement.
That statement and reference to legal counsel there had
nothing to do with the other part of access and whether or not
counsel were involved with that, which again I would ask to
defer.
Mr. Abercrombie. So you separate that kind of litigation,
say a habeas corpus hearing? You separate that and perhaps the
necessity or the desirability of having legal counsel present
from the interrogation situation of a foreign national?
Mr. Liotta. In that comment that you read I was referring
strictly to the habeas litigation and the court proceedings
that would be involved that way. Yes, sir.
Mr. Abercrombie. All right. Finally then, from my
perspective if that is the case do you have something from the
Department of Justice and/or some other authority to make such
a separation?
Mr. Liotta. I don't believe it is a separation, sir. It is
strictly that the testimony was referring to one aspect of
legal counsel's participation and their work with the detainees
at Guantanamo.
Mr. Abercrombie. Well, I am sorry. I am not sure I
understood what you just said. Could you repeat it to me?
Mr. Liotta. You phrased your question, if I understood it
correctly, in terms of a separation, and I am simply saying
that I was not referring to a separation in my testimony.
I was only referring to the aspect of the counsels' ability
to have access to their clients for the legal proceedings for
which their clients are involved in, such as habeas corpus
proceedings, litigation or if there are other cases they have
brought suit against the Defense Department or the U.S.
Government.
Mr. Abercrombie. Then maybe my question wasn't clear. Do
you have something in writing from competent authority that
tells you that in the circumstances of a foreign national
interrogating one of the detainees that the admonition that you
just cited to have legal counsel available for habeas corpus
proceedings or some other proceeding need not be observed?
Mr. Liotta. I am sorry, sir. Could you repeat the last part
of that?
Mr. Abercrombie. Yes. In other words, do you have something
in writing that says where you are required to have legal
counsel for a litigation proceeding like a habeas corpus
proceeding you don't have to have counsel for the detainee if
it is a circumstance involving an intelligence agent or a law
enforcement agent from a foreign power coming to make the
interview?
Mr. Liotta. There is nothing that I am aware of on that,
sir, but I would again defer to the Department of Justice as to
whether there is such a distinction that has been made.
Mr. Abercrombie. Well, then I guess it forces me into
another question though before I conclude. Does the Department
of Justice have observers there or something?
If you have to refer to the Department of Justice over and
over again and you have supervisors there at one level or
another, either troops or officers stationed at Guantanamo, do
they have access to and are there Justice Department personnel
there to advise them as to what they can do and not do?
Mr. Liotta. During their habeas visits?
Mr. Abercrombie. At Guantanamo.
Mr. Liotta. Yes, sir. But, Mr. Congressman, there are many
different types of activities that occur there. In terms of
legal counsel, there are not Department of Justice officials
there when lawyers meet with their clients. Those are
privileged meetings between the clients and----
Mr. Abercrombie. No, no. I am talking to give you advice or
those over whom you have authority.
You say you defer to the Department of Justice in answer to
my questions again and again and again. Is the Department of
Justice actively involved then in the day-to-day supervision of
what can take place and not take place in this context of third
party foreign nationals interviewing prisoners?
Mr. Liotta. The Department of Justice is not day-to-day
involved in our operational activities. They do provide advice
and counsel to us in their role.
With regards to the advice and counsel they provided in
terms of access by foreign officials for intelligence
briefings, again, sir, I would defer to a classified
presentation for that.
Mr. Abercrombie. Thank you. Mr. Chairman, thank you for
your indulgence. My observation----
Mr. Delahunt. Thank you, Mr. Abercrombie. As I listened to
your questions and I reflect for a moment, I am going to ask
you to consult with the chair of the full committee about a
series of hearings at the subcommittee level that are joint in
nature.
And I would ask Mr. Moran and I see in the audience and I
welcome to the dais our dear friend from California, Ms. Eshoo,
who is a senior member of the Intelligence Committee.
Now, I know the Executive always prefers to have classified
briefings. You know, I think the American people have a right
without compromising national security to understand what
happened at Guantanamo, particularly in the case of the
Uighurs. Let us keep it focused, exclusively focused on the
information that has emerged since their release and the
information that we have been able to secure.
With all due respect, we are always being invited to
classify briefings. Let me tell you, there is a sense among
Members on both sides of the aisle that if the Executive or a
particular department is able to secure the consent of Members
of Congress to a classified briefing wow. We know that that
information cannot be disseminated publicly.
There is a balance here that has to be achieved because we
need to have an informed American public to understand our
policies and how they are implemented. One of our great
strengths as a republic in our constitutional system is to, as
the ranking member has said, acknowledge our errors and where
we ran afoul so that we can make the necessary changes.
I daresay that is the best message that the United States
can send to the rest of the world. We are not afraid, and we
have a system of checks and balances that will always allow the
truth to emerge.
Mr. Abercrombie. Mr. Chairman? Mr. Chairman?
Mr. Delahunt. Mr. Abercrombie?
Mr. Abercrombie. If you would just indulge me a follow up
as a result?
Mr. Delahunt. Please.
Mr. Abercrombie. And I appreciate again the other members.
The reason is I have, Mr. Liotta, if you will trust me on
this, and we will make a copy available to you. I have a copy
of an official response from the Office of the Attorney
General, the U.S. Department of Justice, dated July 7, 2009,
addressed to John Conyers, the chairman of the Committee on the
Judiciary, with a copy to Lamar Smith, who is their ranking
member, as Mr. Rohrabacher is here, on the Judiciary, in
response to questions.
On page 14 of the document from Ronald Wyche, the Assistant
Attorney General, on questions submitted by Mr. Delahunt there
is a reference by Mr. Delahunt--do you have that in front of
you now?
Mr. Liotta. Yes, sir.
Mr. Abercrombie. Page 14. Could you look at page 14? A
question is asked by Mr. Delahunt with regard to agents from
China allowed to visit the Uighur detainees. The response by
the Assistant Attorney General on behalf of the Department of
Justice is, ``The Inspector General's Office stands by the
accuracy of its report,'' the report which is referred to in
the question.
The relevant part for me here in the context of the
question I asked you is, ``The Department of Justice does not
control visitor access to Guantanamo Naval Base or access for
interrogation purposes to detainees in the Department of
Defense custody. Such access is controlled by the Department of
Defense.''
The second question then again is answered in explanation
of why Chinese agents are granted more access than
congressional delegation. ``The Department of Justice does not
control visitor access to Guantanamo Bay Naval Base. Such
access is controlled by the Department of Defense.''
So if your answer to me is you defer to the Department of
Justice, the Department of Justice has said in writing that it
does not either control access to Guantanamo Bay detainees, and
for interrogation purposes access with regard to those custody
it does not control it. It is controlled by the Department of
Defense.
So again I must ask you. Have you explored in any way in
writing from some competent authority whether or not you are
actually possibly jeopardizing successful prosecution of
detainees by the United States by allowing third party
interrogations before that prosecution has been successfully
completed?
Mr. Liotta. Mr. Congressman, this is the first time that I
have seen this testimony just handed to me, so I don't have the
context.
Mr. Abercrombie. Yes. I understand that.
Mr. Liotta. I take it at face value what was responded
here.
Mr. Abercrombie. Me too. I just saw it myself.
Mr. Liotta. Yes, sir. But as I read this as what has been
presented to me, I mean, it is a statement of fact by the
Department of Justice that the Department of Defense controls
access, which is the point of my testimony to highlight for you
the policy of that access and how it is derived and the
limitations on that policy that is there.
So I don't believe the statement of facts as presented by
the Department of Justice response to the subcommittee
chairman's questions are inaccurate. I think they are factual
statements that are accurate, which is the Department of
Defense controls that access, and I outlined that in my
testimony.
Mr. Abercrombie. Yes. I understand that. I am asking for
the policy behind it. Do you understand that you may be
jeopardizing the successful prosecution of terrorists?
Mr. Liotta. And again, sir, for questions of prosecution
and what would constitute a successful prosecution or what may
jeopardize that----
Mr. Abercrombie. Okay.
Mr. Liotta [continuing]. I would defer to the attorneys at
the Department of Justice.
Mr. Abercrombie. Thank you, Mr. Chairman.
Mr. Delahunt. Thank you, Mr. Abercrombie.
I am going to go to the ranking member, but if he would
indulge me just for 1 minute?
You indicated that requests by third countries on occasion
have been denied.
Mr. Liotta. Yes, Mr. Chairman.
Mr. Delahunt. It is clear that in the case of the Communist
Chinese Government that request was not denied. Is that an
accurate statement?
Mr. Liotta. As I indicated in my response, Mr. Chairman, I
will not be able to talk about any particular country's request
and whether it was granted or denied in an unclassified forum,
but I am more than happy to provide detailed information on all
the countries to the subcommittee in a----
Mr. Delahunt. I am not going to press you on that today.
Mr. Liotta. Yes, sir.
Mr. Delahunt. But I think it is safe to say, given all of
the information that has emerged, that the request of the
Chinese Government for access to the Uighur detainees was
granted by the government, by the Department of Defense or by
somebody we don't know.
I guess what I am offering to you is after today to go back
to your superiors and inform them that we want an answer to
that question in a public setting such as this. I am not going
to press you today, but we want to know that answer.
I guess I will expand on that somewhat by saying that we
want to know if the request came from the Chinese or was it an
offer that was without a request that was provided by the
United States Government or one of its departments because I
think to say that the response to that answer should be in a
classified setting is absurd.
Again, I know you are here and I know you have to return to
the Department, but we are going to demand that answer, and I
think that I can secure the concurrence of----
Mr. Moran. Absolutely, Mr. Chairman.
Mr. Delahunt. The concurrence of the House Armed Services
Committee, the Appropriations Committee, and I will inquire
from the lady from California, the Intelligence Committee.
To suggest that that has to be done in a classified
briefing is unacceptable to those four committees and I daresay
to the United States Congress because that is laughable. Again,
I don't mean to direct this at you personally, but we want
answers. The American people deserve answers.
One more question, and then I am going to defer if I can.
We talked about a policy. Is there anything written down about
guidance or a policy as it relates to letting the Chinese or
anyone in to interrogate detainees at Guantanamo?
Mr. Liotta. Mr. Chairman, first I will commit to you that I
will bring the committee's request back with me to the
Department----
Mr. Delahunt. Thank you.
Mr. Liotta [continuing]. And the passion behind the request
as well.
And then in response to the second question on whether
there is anything written, again I would say, sir, that I can
explain in more detail and would be happy to go over rules,
procedures, all those things as of right now in a classified
setting.
Mr. Delahunt. Okay. But I guess I can infer that there is
something in writing?
Mr. Liotta. Affirmative. Yes, sir, there is.
Mr. Delahunt. Thank you. I yield to the gentleman.
Mr. Rohrabacher. Thank you, Mr. Chairman, and
congratulations, Mr. Liotta, for your courage in coming here
today and being willing to be interrogated by a panel like
this. I notice that you are sitting there by yourself, and so I
admire that.
Let me just note that your comments about----
Mr. Abercrombie. Mr. Chairman, Mr. Rohrabacher knows what
it is like to be by himself.
Mr. Rohrabacher. Thanks for reminding me. Your comments
about the hard work and the diligence and the gratitude that we
owe our personnel who have served in Guantanamo and people like
yourself who have been given certain authority and
responsibility to handle a very hard part of this war against
Radical Islam.
I mean, this is an extraordinarily difficult part of that
overall operation that protects the American people, and those
soldiers that have been at Guantanamo and those people who have
conducted interrogations and yourself and others who have been
engaged in this, I think that we owe a great debt of gratitude
to you for being able to take on a job, just like being able to
come here today, so thank you for that.
With that said, that doesn't mean that those of us who have
concerns may totally disagree with the policy that you as
soldiers and you as employees of our Government have had to
implement and so today I would say that you have done your job
as well as could ever be expected in defending what I consider
to be an indefensible policy.
That doesn't mean that you are wrong. That means the policy
is wrong, but maybe you have done a good job in defending the
policy because that is your job. So with that said, let me just
ask a few questions about policy here.
So it is our policy, it is our Government's policy, that
information that is received from these interrogations that we
are talking about with the Uighurs and others is classified, is
not available to the American people and to their elected
Representatives outside of a secret criteria of which we can
learn the knowledge? Is that right?
Mr. Liotta. Under the current policy, that is correct, sir.
Mr. Rohrabacher. Okay. So doesn't it sound a bit absurd
that people who are elected in a democratic government to
represent the people and the interests of the people and the
people themselves are unable to have access to information
because it is classified and secret information, but it is
information that we have given to the intelligence agents of a
dictatorship that hates the United States of America?
Do you get what I mean? Chinese Communists, government
officials and their agents have information and we can't? Would
you think that is a bit absurd?
Mr. Liotta. Sir, I understand the frustration with that. As
I said, I am limited. I cannot single out just the Chinese, but
in all aspects of this policy.
I would be happy to provide information about that in a
classified setting, recognizing the frustrations that the
committee has expressed with that.
Mr. Rohrabacher. Okay.
Mr. Liotta. But again, sir, I would add to that that we are
and we remain in a war, and the information flow when a foreign
delegation visits isn't just one way. It is also the other way.
Mr. Rohrabacher. So we can trust the Communist Chinese
intelligence agents, but we can't trust that information would
be available to the American people because those intelligence
agents must have the interest of the American people at heart
as compared to elected officials by the American people?
You get the absurdity of it. All right. Fine. It is your
job to argue your case, and you have argued your case well.
As I say, I think there are some things that are very
disturbing about the actual position. Not disturbing about you,
not disturbing about the men who conducted the interrogations,
not disturbing about our military personnel. Disturbing about
the policy and those who actually set that policy. I am
assuming that you did not set policy and that you are a person
who is here and it is your job to explain policy.
Mr. Liotta. The policy regarding access was established
long before I came to this position, sir.
Mr. Rohrabacher. Okay. Well, let me ask you this. So the
International Red Cross Committee has total access to
prisoners.
By the way, in the International Committee of the Red
Cross, the ICRC, is there any person in that group that is an
elected official?
Mr. Liotta. To be honest, sir, I am not sure of the makeup
of the ICRC and where their role is, but I don't believe so.
Mr. Rohrabacher. Yes. It is made up of people who are
appointed by someone else, a private organization or an
international body, but not made up of anyone who represents
people.
You know, there is a fundamental difference between our
country and other governments and agencies. In our country the
power rests with the electorate, with the people of the
country, but it seems that now you are saying the rules of the
game that are policies that we are talking about would say that
those people who are elected to represent the people of the
United States have no rights in this particular area as
compared to a group of unelected foreigners.
Mr. Liotta. That was not the point I was making when I
referred to the ICRC. I was simply referring to our obligations
under the international preferences as they are recognized.
Mr. Rohrabacher. Right. But as you see it----
Mr. Liotta. But I see your point. Yes, sir.
Mr. Rohrabacher. As you see, the policy is a group of
unelected foreigners have more rights to oversee the
implementation of American military personnel, foreign policy,
dealings with this conflict, than do the elected
Representatives of the people of the United States.
Mr. Liotta. Sir, respectfully I would have to disagree that
they have more rights. The Congress has been very prolific over
time in providing us----
Mr. Rohrabacher. Well, you have told us that they have
absolute access and we have no access, so I would say that that
is giving them more authority than we have, but we will leave
that for the record as well.
Again, this is not a reflection on you and it is not a
reflection on the people who are actually having to carry out
the orders that are based on the policies that we have
asserted, that we have developed for our country.
Let me note that I do not believe that it is necessary to
have counsel available, legal counsel available, during
interrogations of terrorist prisoners who are picked up on a
battlefield. I don't think that is necessary. I disagree with
my colleagues on that. I don't think that in wartime situations
you have to go by the criminal justice rules of American
citizens. I just want to make sure that is in the record.
Let me ask you about this policy and about the things that
we have said. Again, I echo my chairman's concern about always
trying to get things into classified briefings, which then for
the public that doesn't know knows that once we have a
classified briefing even if we know 98 percent of what has been
told us, then there are controls on what we can say and what
the American public can know or what our opinions are of
certain aspects because at that point we can be accused of
releasing classified information that maybe everybody else
knows anyway.
Male Voice. Like the Chinese ones are going.
Mr. Rohrabacher. Like the Chinese Communist intelligence
agents.
Mr. Liotta. Sir, I sympathize with that position.
Mr. Rohrabacher. Yes. And let me also again reiterate I
actually did not know over all these years that those U.S.
Senators and Representatives that went to Guantanamo did not
have access to the prisoners themselves to even ask them a
question. I did not know that.
I would say that had I known that, I would have paid a lot
more attention to the complaints of my Democrat and liberal
colleagues about Guantanamo if I had known that we as a body,
as the elected Representatives of the American people, did not
have access to those prisoners to hear something that they
might want to tell us.
Had we had access, perhaps this incident today with the
Uighurs could have been corrected a long time ago.
Mr. Delahunt. Would my friend yield a moment?
Mr. Rohrabacher. Yes.
Mr. Delahunt. I wanted to state as a matter of record that
our request was supported by all of the Uighur detainees. Their
counsel had consulted with them. Their legal counsel had
consulted with them. Legal counsel reported back to the
committee that they were able to secure whatever waiver was
necessary because those men that according to a Bush
Administration official, Assistant Secretary Shriver, had been
wrongly imprisoned.
Again, I want to note for the record that I respect his
testimony before this committee for that admission and that
acknowledgement, but I daresay that those men, those Uighurs
who were interrogated, intimidated and threatened by Chinese
Communist security agents, did not give their consent and were
not willing, but felt coerced to be interviewed by the agents
of that repressive regime.
With that I thank the gentleman for yielding.
Mr. Rohrabacher. Again, had we had access I can imagine
that if we had been down there and one of these Uighur
prisoners would have through an interpreter told us, a Member
of Congress, by the way, we love America and we just came over
here to learn how to fight the repression that our people
suffer from the Communist Chinese Government, that would have
been enough to trigger.
At least if anybody would have told me that, that would
have triggered a situation where we could have corrected this
wrong a long time ago, but instead they have had to suffer
years because of a lack of ability to talk, to have
communication with elected Representatives.
It says here the Third and Fourth Geneva Conventions
contemplate that a nation state should shield detainees from
the public eye to protect them from public curiosity. You are
using that as the basis for a denial of access to the elected
Representatives of this government.
Is that what the Defense Department believes is what
elected government is all about, public curiosity?
Mr. Liotta. No, sir.
Mr. Rohrabacher. Okay. I didn't think so. I would suggest
that is not a very good argument, but I understand you had to
make every argument that you could.
Now let us go to the policy. What I would suggest is if you
cannot answer these questions I would suggest that you answer
them in writing to us if you can. I wouldn't expect that you
would be able to right off the top of your head be able to come
up with all these answers.
But who were the Chinese interrogators? Were they
intelligence people, or were they members of the Consul
General's Office or something here or embassy staff in
Washington?
Mr. Liotta. Again, Congressman, with regard to whether they
were Chinese interrogators or anyone else, I cannot talk in an
unclassified hearing about the specific instances.
Mr. Rohrabacher. Okay. So the Chinese Communist
intelligence agents can know, but the American people can't
know.
I think it is the American people's right to know things
like that. We have to keep secrets from our enemies. I
understand that totally, but why do we have to keep secrets
from the American people that our enemies obviously know about?
So we will see.
We will go into how far we will allow the Intelligence
Committee briefing to be classified rather than try to get the
people----
Mr. Delahunt. Again if my friend would yield? I do want to
consult with Ms. Eshoo and Mr. Moran and Mr. Abercrombie and
members of those because these questions are the same questions
I think we all have.
Mr. Rohrabacher. Right.
Mr. Delahunt. But I want to persist in being very clear
that I cannot understand why the answers to these questions
should be in a classified brief.
Mr. Rohrabacher. Right. Considering the----
Mr. Delahunt. I concur, and I think my colleagues do----
Mr. Rohrabacher. Yes.
Mr. Delahunt [continuing]. That these answers, and, Mr.
Liotta, it shouldn't be you that provides those answers.
Clearly when this policy was affected it was Secretary
Rumsfeld.
You know, we should extend him an invitation to come before
this committee to explain that policy, and I think we have to
extend an invitation to whether it is Secretary Gates or
whomever from the Obama Administration.
Are they changing this policy? Are they going to continue
this policy or are they in the process of reassessing this
policy, because I don't think it has the support of the United
States House of Representatives.
Mr. Rohrabacher. Reclaiming my time, you say that it was
monitored. Were these Chinese personnel ever alone with the
Uighurs without American supervision? You say it was monitored.
Was it always monitored, or was there a time when they were
alone?
Mr. Liotta. I regret that I would not be able to answer
that specific question in an unclassified setting, sir.
Mr. Rohrabacher. All right. All right. And I guess all of
these other questions that I have--I will submit a list of
questions. Rather than taking up time now, I will submit a list
of questions to you about this, and they will be specific
questions. Just rather than take up the time of the hearing, we
will just do this.
Let me just end this, my segment of this, by saying that I
think that again we are in a war with Radical Islam, and I do
acknowledge that we owe such a debt of gratitude for people
down there.
I don't want this ever to be thinking this in some way
besmirches the people who are down there guarding the gates so
to speak and involving themselves in the interrogation of
prisoners, which is a very incredible responsibility at a time
like this when we know that prisoners could be deeply involved
in conspiracies.
You know, we found out from Ramzi Yousef. I remember that
when we captured his laptop in the Philippines that there was a
list of targets. One of the lists was Disneyland. They were
going to have poison gas and kill thousands of families at
Disneyland. Now, that is the kind of enemy we are up against. I
understand that. I take it extraordinarily seriously.
Obviously mistakes will be made in trying to prosecute such
a war. We have to admit it when those mistakes are made and be
brutally honest with ourselves and our people. We shouldn't be
keeping secrets from our people that our enemies know because
our people need to support the policies of this conflict.
I have one last note, and that is Ramzi Yousef. I have had
a request from the last Administration to see him in Federal
prison. I was denied. Mr. Chairman, I am being denied and all
of us are being denied the same access that was denied during
the last Administration and George Bush. What a horrible man, a
horrible President.
Those very same restrictions are now on us and are now
being reaffirmed in today's testimony by this Administration. I
was against it then, and I am against it now. This is a
bipartisan demand that the rights of the legislative branch of
government be respected.
Thank you.
Mr. Delahunt. I thank my friend. I am going to----
Mr. Liotta. Mr. Chairman, may I interrupt for 1 second?
Mr. Delahunt. I am sorry.
Mr. Liotta. I just wanted to respond to the ranking member
that had to leave.
Mr. Delahunt. Sure.
Mr. Liotta. I just wanted to say, sir, thank you for your
comments in support of the men and women there.
I had the privilege to escort Mr. Berkowitz on a trip down
to Guantanamo, and he made the point of your support for them
when he was there. It was greatly appreciated. Thank you, sir.
Mr. Delahunt. I thank you, Mr. Liotta.
I am going to go to Congressman Moran since he has been
waiting here patiently. I will not inquire. We have 13 minutes
left, and I would like to be able to conclude with Mr. Liotta.
Our second illustrious panel is going to have to wait for
approximately an hour. You could go down to the fine dining at
the Rayburn basement, but we are eager to hear from you.
Mr. Moran?
Mr. Moran. Thank you very much, Mr. Chairman. In reference
to my good friend from California's remarks though with regard
to Ramzi Yousef, I know he would agree it is somewhat
irrelevant to the situation of the Uighurs since both the Bush
and Obama Administrations have stated for the record that they
do not constitute any threat to United States citizens, and
that is what we are talking about today.
Now, Mr. Chairman, is there not an obligation on the part
of witnesses to respond to questions as accurately and as fully
as possible? We used to have their hand and say that. We don't
do that anymore, but certainly witnesses understand that to be
the case.
Mr. Delahunt. Of course they do.
Mr. Moran. Now, if a witness is deliberately evasive,
chooses not to answer a question or obviously answers a
question untruthfully, can they not be held in contempt of
Congress?
Mr. Delahunt. That is my understanding.
Mr. Moran. All right. Now, Mr. Liotta, let me ask you
because in listening to the chairman, Mr. Abercrombie and Mr.
Rohrabacher my frustration continues to mount.
We all know--maybe not everybody in this room, but
certainly on this part of the dais--and you know very well
because you are employing this tactic that in order not to
answer a question you can suggest it be provided in classified
form.
That is not acceptable. There is no classification of that
answer. This is a manipulative, evasive tactic that you are
employing. We have no requirement to accept that.
Now, you have been asked directly were the Uighur detainees
afforded legal representation during the interrogation by
Chinese Communist agents. Yes or no?
Mr. Liotta. Sir, I regret that I cannot respond in----
Mr. Moran. Yes or no, Mr. Liotta? We are responsible to
represent the interests of the American people. You are
responsible to respond accurately and fully. I am not going to
accept that.
You know there is no classification of that answer. You
know you don't want to answer it and so you are suggesting that
this is somehow classified. It is not classified. There is no
legal requirement, no authority, no instruction to you that
this is classified information.
You are using an evasive tactic. I want to know what the
answer is. Were they afforded legal counsel? Yes or no?
Mr. Liotta. Sir, I regret I cannot talk about the specifics
of any visit for foreign----
Mr. Moran. Who says you can't talk about it?
Mr. Liotta. Under the current policy, sir.
Mr. Moran. Whose policy is that?
Mr. Liotta. Department of Defense classified policy.
Mr. Moran. Who made the policy specifically?
Mr. Liotta. I don't know specifically. I can get you the
information. It was established before I came to my position,
sir.
Mr. Moran. You have been in since July 2004. I want to know
and you need to provide us now where you get this information.
Let me tell you. You know, there are some tools we have as
well, and one of them is to eliminate funding for various
offices to get a point across. Now, I understand that Ms.
Flournoy is a very nice person. I have read about her policy
and so on, but maybe it is time to get this to her attention.
Why she is retaining someone that has been instrumental in
sustaining a policy that has done more damage to our reputation
and has provided more potency to the propaganda of the enemy
than perhaps any other single policy, and that is our policy
with regard to Guantanamo. Why you are still in your position
since July 2004 is beyond me, so it brings into question her
judgment.
Now, we are going to mark up the Defense appropriations
bill, and unless we get a full and accurate answer now I intend
to offer an amendment to defund that office, and we will go as
high as we need to do. It will give me an opportunity. Whether
I insist that it be included in the bill or not, it will
certainly give me an opportunity to explain to the entire
Appropriations Committee and in front of television cameras why
this is necessary.
Now understanding the consequences of your response, do you
still maintain that that is the appropriate response?
Mr. Liotta. Yes, sir, I do.
Mr. Delahunt. Is this a defensible policy to allow Chinese
intelligence Communist agents to interrogate people under our
control who we have recognized are no threat to the United
States without legal counsel, to allow them to do that, not to
allow United States Members of Congress access to them and then
to provide personal information with regard to their families?
This is a defensible policy on the part of the Department
of Defense and you are prepared to defend that policy?
Mr. Liotta. That is the policy that exists today. Yes, sir.
Mr. Moran. That is the policy that exists today. Thank you.
I wanted you to be on the record on that.
One more point. Do you know what the disposition is of the
families whose identities you revealed to these Chinese
Communist agents in China? Do you know whether they have been
executed or not?
Mr. Liotta. Without reference to whether the Chinese visit
occurred, which I can't refer to in this meeting, sir, I do not
know their disposition of the families.
I do know that we have established phone calls for the
Uighurs on a regular basis so they can call back to their
families, and they have done so successfully.
Mr. Moran. Do you know whether they are still alive since
there have been almost 200 Uighurs executed by the Communist
Chinese Government in the last 2 to 3 weeks?
Mr. Liotta. I do not know the specific dispositions of
their family members with regard to----
Mr. Moran. Do you think it is any responsibility of the
Federal Government since you revealed that information to the
Chinese Government?
Mr. Liotta. I don't understand the question, sir.
Mr. Moran. Well, do you think we have any responsibility or
culpability as to the welfare of those families since we
revealed personal information as to who their families are?
Mr. Liotta. I cannot respond to questions that deal with
whether or not a Chinese visit occurred, but I will say that we
have as the Department of Defense undertaken and successfully
been able to achieve phone calls between the detainees and
their families so that they can stay in contact with them.
Mr. Moran. Mr. Chairman, again we have made note of this,
but the idea that the reasons for not allowing Members of
Congress to have communication directly with detainees is
concern for the safety of the detainees.
Now, you allowed intelligence agents of a foreign country
to interrogate them, but you are concerned about their safety
and that is why you don't allow United States Members of
Congress.
You are concerned about public curiosity. As Mr.
Rohrabacher suggested, apparently you are implying we would be
seeing them out of some public curiosity.
And then the third reason is to avoid complications with
ongoing litigation in U.S. courts. Is there any litigation with
regard to these Uighurs who have been determined by the Bush
and Obama Administrations not to be any threat to the United
States citizens?
Mr. Liotta. There has been litigation. Yes, sir.
Mr. Moran. With regard to these Uighur detainees, is there
ongoing litigation in U.S. courts, reading from your testimony?
Mr. Liotta. I would defer to the Department of Justice on
the status of the ongoing litigation.
Mr. Moran. Defer to the Department of Justice, and the
Department of Justice says they defer to you.
Mr. Liotta. Sir, I am deferring solely on the aspects of
whether there is ongoing litigation with them.
Mr. Moran. Mr. Chairman, this witness, while it has been
informative to us to see how evasive the executive branch's
policy is, has been singularly uncooperative and uninformative
and evasive.
I would hope that we would communicate that to Secretary
Gates of the Department of Defense. To take up 2 hours of our
time and not to directly answer any of the relevant questions I
think is an absolute insult to the United States Congress.
Mr. Delahunt. I thank the gentleman for his line of
inquiry.
Mr. Liotta, I understand that this is a difficult moment
for you. I have no doubt that you have received instructions. I
also have no doubt that you have seen the passion and the
conviction of members who have participated in this phase of
the hearing.
I think there is a lot to learn in terms of the Executive's
view of where we have been in the past in terms of this
specific policy, and I daresay that it cuts across all of the
relevant committees, between Foreign Affairs, Appropriations,
the Committee on the Armed Services and the Intelligence
Committee.
Again, you find yourself in a very awkward situation, and I
understand that and I respect that. At the same time, I know
that you will return and report to your superiors about the
passion with which members have spoken on this issue.
It is of grave concern to us. It truly is because it is my
belief and that of Mr. Rohrabacher that much of what has been
said about the Uighurs, those that were detained, is false, is
inaccurate, that they are not terrorists, and to deny them
simply on that label the right to resettle in this country is a
wrong that is a stain on our national honor and our history as
articulated by the words I quoted from George Washington.
I hope that you go back to your superiors, and I know that
the Administration is working on a plan and a policy in terms
of closing Guantanamo. While we ask other nations to take
detainees, the fact that we will not at this point in time it
would appear accept some detainees is unacceptable. Is
unacceptable.
Americans will understand if they hear the truth. If they
know that these 22 men were innocent, were, as Secretary
Shriver said, wrongly imprisoned and that their story is a
tragedy they would welcome them, as Washington would.
Rather than simply listen to pundits and those who want to
secure political advantage by fear mongering, let us just do
the right thing in this matter. That is the message I want you
to take back to the executive branch.
Congresswoman Eshoo and Mr. Carnahan, do you have anything
to add?
Mr. Eshoo. Mr. Chairman, I would just like to thank you for
your legislative courtesy in inviting me to this hearing. It
has been instructive.
What I also want to extend to you is the full hand of
cooperation of the House Intelligence Committee should you need
it. I think the whole question of what is classified, why it
was classified, has really not been established very well, at
least not in terms of what I have heard, with all due respect
to the witness.
I think it would be very important to understand (A) who
actually employed the statute to classified and the reason for
it, which I don't think has been established here.
Mr. Delahunt. Correct.
Mr. Eshoo. And how we allow foreign intelligence services
into our operations; of all foreign intelligence services the
PRC.
We have done a lot of work with foreign countries. I just
left an Italian delegation who works with the United States so
cooperatively.
I am not aware of a great and high level of cooperation
with the PRC intelligence services and the United States of
America, so why we would entrust them to be in charge of U.S.
detainees is a huge question.
Mr. Delahunt. And subsequently label them as terrorists, a
minority that we have prosecuted, and we accept their
information at least in part and put the label of terrorist on
these men whom, as Secretary Shriver said, were wrongfully
imprisoned and now some would incite the fears that American
people legitimately have and deny them the right to be paroled
into the United States while we ask other nations to take them.
That is not our America.
Mr. Eshoo. Thank you, Mr. Chairman.
Mr. Delahunt. Mr. Carnahan?
Mr. Eshoo. Thank you, Mr. Chairman.
Mr. Carnahan. I know we have votes, but I just want to add
my thanks to you, Mr. Chairman, to our colleagues from other
committees in this Congress.
I think the witness and those watching this understand just
how serious the Members of Congress take this and how we need
to get to the bottom of this and find a solution.
Thank you, Mr. Chairman.
Mr. Delahunt. Thank you, Mr. Carnahan.
Mr. Liotta, thank you. Thanks for the forbearance, the
courage. You can bring the message back. I want you to know
that I know how difficult your task is, and I respect you for
it. You are excused.
We shall return in about 1 hour and look forward to the
testimony from the other three witnesses.
[Recess.]
Mr. Delahunt. The committee will come to order again. Let
me express my apologies and my gratitude for your indulgence.
This is an important panel. I have read your testimony, and
I think it is important that as we build a record of what
occurred with the 22 Uighurs I think it is important that those
who may be viewing this, whether it is C-SPAN or some other
outlet, and clearly the committee will have a transcript
available. I really do mean it when I say that your written
statements were apropos, very informative, and I believe we are
beginning to peel the skin off this onion.
It is painstaking at times, but clearly I can tell from the
conversations with my colleagues that interest is emerging not
only in terms of the treatment of the Uighurs and the fact that
they were wrongly imprisoned--and, as Secretary Shriver said,
their story is a tragic one--but also the issue of
classification and government secrecy. There is a growing
concern on the part of Members of Congress. I wish that concern
had arrived at an earlier date. Maybe we wouldn't be here
today.
But in any event, let me introduce for the record our
second panel. The first witness will be Jason Pinney. He is an
attorney with Bingham McCutchen in Boston. He, along with a
team of lawyers from that firm, represent a number of former
and current Uighur detainees at Guantanamo on a pro bono basis.
I want to recognize in the audience Susan Baker Manning,
who also has made a magnificent contribution to the rule of
law.
His billable work--I don't know whether he has time for
billable work, but when he is earning his living he focuses on
general, commercial and securities litigation. He regularly
advises clients on a number of business matters, including
class actions, shareholder suits and securities arbitration. He
is a graduate of Union College and attended Boston College Law
School where I graduated from as well a few years before you
did, Jason.
I am also very pleased once again to welcome my friend,
Bruce Fein, as a panelist. He is a nationally and
internationally renowned constitutional lawyer, scholar and
writer, served as both Associate Deputy Attorney General for
the Justice Department and General Counsel for the Federal
Communications Commission under President Reagan. He later
served as legal advisor to then Congressman Dick Cheney on the
Joint Committee on Covert Arms Sales to Iran.
Mr. Fein is the founding partner of Bruce Fein & Associates
and is currently writing a sequel to his recent book,
Constitutional Peril.
Finally, I am happy to welcome Tom Parker of Amnesty
International. He is the policy director for tourism, counter-
terrorism and human rights at Amnesty. He was previously
executive director of the Iran Human Rights Documentation
Center in New Haven, Connecticut, and has worked extensively
during the past 5 years as a consultant on post conflict
justice issues for clients such as USAID and the MacArthur
Foundation.
In 2003 to 2004, he served with the Coalition Provisional
Authority in Iraq as the head of the Crimes Against Humanity
Investigation Unit. He spent 4 years as a war crimes
investigator with the International Criminal Tribunal for the
former Yugoslavia and 6 years as a counterterrorist official
with the British Government. He holds degrees from the London
School of Economics, the University of Leiden and Brown.
It is a pleasure to welcome such a distinguished group of
witnesses, and why don't we proceed first with Mr. Pinney?
Mr. Pinney. Thank you, Mr. Chairman.
Mr. Delahunt. Jason, can you make sure you hit that?
Mr. Pinney. Yes. There we go. Thank you, Mr. Chairman. May
it please the subcommittee, though.
Mr. Fein I believe has a time commitment of concern, so if
we could defer to him I think that would accommodate the
schedule.
Mr. Delahunt. Thank you for your courtesy.
Bruce?
Mr. Fein. I have to leave at 2:35 or something like that.
Maybe it won't be necessary to curtail the full explication.
STATEMENT OF BRUCE FEIN, ESQ., PRINCIPAL, THE LITCHFIELD GROUP
Mr. Fein. I want to address the points that I made in my
written testimony that I guess have been submitted to the
record because I think the Uighurs are a symptom rather than an
aberration here of what has gone wrong with the United States
not only post 9/11, but previously.
The oversight function of Congress has been crippled. It is
not just the lack of access for interviews, the withholding of
information that should be reported to the Intelligence
Committees, the invocation of state secrets, repeatedly keeping
Congress in the dark, so there are no checks and balances.
What I would like to do in my oral testimony here is to
explain what I think can be institutional remedies to ensure
that not only will we uncover what exactly happened with regard
to the Uighurs. How did the Chinese Community security services
get access? Who gave them access? Was it in exchange for a deal
that the Chinese Communists would not veto our U.N. Security
Council proposal to invade Iraq or otherwise?
Those things linger, and I think I would suggest that the
Congress consider the power of the purse as being really the
juggernaut that enables them to get access to anything they
want. For instance, what about, Mr. Chairman, access to
detainees to interview?
If you passed a law that simply said no monies of the
United States shall be expended to detain any person at
Guantanamo Bay who is withheld from an interview with a Member
of Congress, that then ends the issue of whether or not they
can withhold permission for you to visit. If they do, they
cannot then detain that individual anymore. Put the
Administration in the position of saying we have let go the
worst of the worst because we don't trust your elected
officials to interview these people.
That is the kind of muscular effort that in my earlier
years in Washington I saw exercised. For instance, the 1970s
when there was complaints about the CIA's covert operations in
Angola. The Congress simply passed a statute. There is no money
for the CIA to fund any covert operations in Angola, and that
was the end of the matter. So that is one thing that I think is
exceptionally important.
Also, I think that it was the testimony today by the
witness for the Defense Department that I think reveals this
psychology of Executive supremacy that is so dangerous to our
institutions, the checks and balances to the ability to know
what is going on, to suggest there may be wrongdoing or need
for change not only because of the individuals involved, but
because what we do also sets a precedent for what the other
countries may do to our prisoners, our detainees, if we are
captured and we don't want to give license to having happen to
our American citizens what we may be doing to detainees from
other countries.
But let us look and see what the considerations that the
Defense Department officials said in forming their decision
whether to grant access for an interview or otherwise. First he
says to ensure the safety of the detainees. Well, remember it
is up to the Congress to decide what is the relative tradeoff
between the need for openness and access in order to detect
abuses and what the risk to the detainee.
It is also somewhat odd that they would identify this as a
consideration since by exposing the Uighurs to the Chinese
security services they were creating a danger to the detainee
and the family, not the other way around. So this is rather an
Orwellian concept that only had credibility because the
individual claimed classified information prevented him from
answering directly what was done and what kind of information
was given to the security services from the People's Republic
of China.
Now, the second consideration is to shield detainees from
public curiosity to remain consistent with the Geneva
Conventions. Now, I guess it is laudatory that now there seems
to be a newfound scrupulousness toward compliance with the
Geneva Conventions when before it didn't apply at all. Common
Article I didn't prevent torture or inhumane, degrading
treatment of detainees.
But again, this comes back to the question of which branch
of government makes this policy. There is assumption that the
executive branch decides anything and you then are beholden to
whatever they decide. The Congress of the United States decides
whether or not that privacy interest justifies withholding
sunshine, and we know that sunshine is the best disinfectant.
That was a phrase Louis Brandeis fashioned well over a century
ago.
But this suggestion that it is up to the executive branch
to make that tradeoff totally misconceives the Constitution of
the United States. And then it says there is a third
consideration here, and this relates to litigation. Well, we
need to decide whether or not access would impair our ability
to defend particular interests in litigation.
There were two kinds of litigation that were mentioned this
morning, Mr. Chairman. One was habeas corpus proceedings. Well,
you will recall that habeas corpus was resisted and denied,
anyone at Guantanamo Bay, until the U.S. Supreme Court's
decision in the Boumediene case, which was a year ago.
So this policy as crafted in 2002, 2003, were years before
habeas corpus was available and was over the dead bodies of the
Defense Department, not something that they welcomed in any
event.
Now, the second category of cases that he was referring to
was military commissions. Now, military commissions are tried
by military personnel. He was insinuating the Department of
Justice tries those cases, but that is wrong.
Now, there have been a grand total of three out of all the
detainees, three military commission trials, and the vast
majority of those at Guantanamo Bay the Administration has said
are not going to be headed for military commission. I think the
high water mark of the number who might be tried was going to
be 20.
So how does that apply to all the others who are not
subject to any conceivable military commission trial? It just
shows that this seemed like a concocted argument. In any event,
it is up to the Congress of the United States to decide what
risks you will have to litigation that are a tradeoff for the
openness that you want in order to prevent abuses.
Congress has done that with the Intelligence Secrets Act,
which decides what kind of information has to be disclosed to
the defendant if you are going to have a trial and if you
withhold others which will end up in an ending of the
prosecution because that denies the individual a fair trial.
But I think Congress has to step up to the plate here. It
is not going to be good enough just on can this individual get
waivers, get them to tell you in public what happened to the
Uighurs. There will be a second group of Uighurs in another 2
or 3 weeks' time unless institutionally you have access.
Just the threat, just the knowledge down there in
Guantanamo that Mr. Delahunt can come down and look and
interview these people at any time, that will have an enormous
deterrent effect before anything happens whatsoever.
It was President Reagan who said trust, but verify, and
that is something that was needed not only with regard to the
Soviet Union at the time, but all branches of government. What
I found most disturbing about the Defense Department is that
they view the Congress of the American people as their enemy,
their adversary in this process.
I remember Robert Jackson, the Associate Justice, writing
in the Youngstown Sheet & Tube case the Constitution certainly
anticipates a separation of power, a diffusion of power, but
also some kind of integration, some kind of comity, because the
fact is if you have that attitude of an enemy or an adversary
or relationship between the branches the whole system will shut
down.
There would be an ability, for example, of the Congress to
totally enfeeble the Executive. Just don't appropriate any
money. If you want to shut down the White House, the Patorian
guards, say there is only money for the President's salary.
Nothing else.
That obviously contradicts the whole purpose of having a
separate branch of government, just like it would be the
ability of the President to say we are going to shut down the
Judiciary. Do you know why? I won't nominate anybody to fill
vacancies. Then there can't be a Judiciary. So there has to be
some kind of comity and understanding that you have to work in
some sense together as an integrated whole if the whole system
is going to work
I would be delighted to amplify on these particular
proposals, but I want to underscore my view. You have to change
the whole structural way in which we conduct our operations
openly if we are going to prevent these abuses.
Transparency should be the rule. There should be a huge
hurdle to deny transparency. Right now it is the opposite. The
rule is secrecy, and it is like we make an exception to give
you knowledge.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Fein follows:]Bruce
Fein.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Delahunt. Thank you, Mr. Fein. You echo my own
sentiments.
I would suggest, and we will go to Mr. Pinney in 30
seconds, that is more than just simply structural, but I think
what has evolved, and let me be very clear, under the Bush-
Cheney Administration is this penchant for lack of transparency
and secrecy not just in issues such as this, but on every
single issue.
The head of the National Archives--I forget his name; I am
sure you know it--commented on the overclassification of
government documents. It is cultural, you know. And I have
great hope that the Obama Administration will begin to erode
that curtain of secrecy.
Clearly there are remnants of that culture that are still
very much embedded into the mindset, if you will, of many in
the executive branch, but I think you probably observed today
the fact that the lack of transparency and overclassification
is a festering sore for many in the first branch of government.
As you and I have discussed, I think it is really important
that we begin to restore the appropriate role of the U.S.
Congress in our constitutional scheme. So we will continue to
move in that direction, and I am aware that it is going to be
an effort of long duration and tedious and at times
frustrating, but I can't agree more.
Jason?
STATEMENT OF JASON PINNEY, ESQ., COUNSEL TO UIGHUR DETAINEES,
BINGHAM MCCUTCHEN, LLP
Mr. Pinney. Thank you, Mr. Chairman. At this point I would
like to read my written testimony into the record.
My name is Jason Pinney, and I am an attorney with Bingham
McCutchen in Boston, Massachusetts. First I would like to begin
by thanking the subcommittee for holding these hearings
concerning the continuing detention of the Uighurs at
Guantanamo.
Although these men have long been cleared of any
wrongdoing, it is unclear why they were ever labeled as enemy
combatants in the first place. As Justice Brandeis famously
remarked and as Mr. Fein just reminded us, sunlight is the best
of disinfectants.
For the past 4 years I have been part of a team at Bingham
McCutchen that has represented on a pro bono basis as many as
11 of the 22 Uighurs imprisoned at Guantanamo. None of these
men are enemy combatants, and there has never been any
justification for holding them.
Thirteen Uighurs are still imprisoned at Guantanamo today.
They remain there this afternoon. They remain there because no
country, including our own, has the courage to stand up to the
Chinese and offer them refuge.
The problem, however, goes far beyond our failure to
resettle these men. An objective look at the evidence reveals
that our country imprisoned the Uighurs as part of a quid pro
quo with China.
China, as Mr. Fein mentioned, is one of the five countries
on the United Nations Security Council. In 2002 and 2003, we
needed China's support in order to invade Iraq. In exchange for
Chinese acquiescence in our war plans, we agreed, among other
things, to label the Uighurs as terrorists and to house then at
Guantanamo.
What is more, we agreed to provide the Chinese with special
and unprecedented access to the Uighur men. In September 2002,
we allowed a delegation from the Communist Chinese Government
to travel to Guantanamo and interrogate the Uighurs imprisoned
there. The interrogations lasted for days.
Mr. Delahunt. Mr. Pinney, let me interrupt you for a
moment.
At any time did any representative of the U.S. Government
contact you or any other attorney, counsel to any of these
Uighurs, if you know, seeking your consent that Chinese
Communist agents interview your clients?
Mr. Pinney. No, we were never contacted, nor, as you heard
from the gentleman from the Department of Defense this morning,
do they even confirm that the Chinese visited our clients at
Guantanamo.
Mr. Delahunt. But your clients have informed you that in
fact their interrogation back in September 2002 in fact
occurred?
Mr. Pinney. That is correct. In addition, we have uncovered
other government documents that have confirmed the visit, so we
have absolutely no doubt that the visit occurred.
Mr. Delahunt. Thank you. Proceed.
Mr. Pinney. No representative from the United States was
present during these interrogations. In the history of our
republic, I cannot think of another example where a Communist
country was invited to interrogate unsupervised prisoners of
the United States in a United States detention facility.
Despite our best efforts as counsel, no one has been
permitted to meet with our clients at Guantanamo. The United
Nations has been barred from meeting with the Uighurs. So have
several human rights groups. The press has been denied
permission to speak with the men or to publish pictures of
their faces.
Even members of this subcommittee, as you well know, Mr.
Chairman, have been denied access to the Uighurs despite the
permission of counsel and the desire of our clients to meet
with you. It makes no difference that they are innocent men.
The answer has always been the same. No contact has been
allowed.
The exception to this rule is the Chinese visit in
September 2002. At that time our country permitted a delegation
from the People's Republic of China to travel to Guantanamo and
interrogate all 22 Uighurs held at the prison. Prior to the
interrogations, the Americans, as you said earlier, Mr.
Chairman, softened up the men by denying them sleep and in some
cases food.
Our Government also provided the Chinese interrogators with
copies of the Uighurs' files, personal files with family
information, despite prior assurances to the men that the
information would never be shared with their Chinese
oppressors.
Mr. Delahunt. Let me interrupt you there. Your testimony is
today that you were told by clients that you represented that
they had been reassured that information regarding their family
and their identity would not be shared with the Communist
Chinese intel agents? Am I repeating what your testimony is
accurately?
Mr. Pinney. That is correct, Mr. Chairman. When our clients
were picked up it was very important to them, given the prior
conduct of the Chinese regime to do harm to family members of
political dissidents. It was very important to them to keep
that information confidential.
They agreed to share that information with our military on
the condition that it was not shared with the Chinese. That
promise was broken in September 2002.
Mr. Delahunt. In fact, they had fled their homeland because
they feared persecution by the Chinese Communist regime. Is
that what you have been informed by your clients?
Mr. Pinney. That is correct. Many of our clients fled
Chinese oppression that began in the late 1990s and continues
to this past July 4 holiday.
Mr. Delahunt. Please proceed.
Mr. Pinney. Many of our clients have said that these
interrogations were the hardest thing they had to endure during
their 7 years of incarceration at Guantanamo.
The Chinese made threats against their family and threats
against the men themselves. Each of the Uighurs was told that
he would be sent back to China and imprisoned or worse. The men
were petrified what would happen to themselves and their family
members if the Chinese carried out on their threats.
They were also subjected to stress techniques such as
forced sitting for many hours in a cold room, hands bound
together, legs shackled to the floor. Some of this mistreatment
appears to have been administered by United States military
personnel at the instruction of the Chinese.
All of this would not be possible without the support and
cooperation of the United States. Military personnel went as
far as forcefully holding up my clients' heads by the hair and
by the beard so that the Chinese could take their picture.
Statements from our clients' Combatant Status Review
Tribunal transcripts exemplify the Uighurs' experiences at the
hands of the Communist Chinese interrogators. Remarkably, these
CSRT statements were all made in response to direct questions
from Tribunal panel members.
Sometimes it was the first question that these Tribunal
panel members asked during our clients' hearings. It appears
that some of the military officers at least were concerned
about this Chinese visit way back in 2004 when these hearings
were held.
There are several examples from the CSRT transcripts that I
can cite. I would like to share one with you today, and then I
would like to talk a little about some statements that my
clients made just recently and we have submitted into this
subcommittee's record.
Salahidin Abdulahat, who is one of my clients now in
Bermuda, described to his Combatant Status Review Tribunal how
he was forcefully interrogated, threatened and deprived of
sleep and food by the Chinese delegation. Furthermore, he
described how, ``There was an American person representing the
President's house,'' who threatened to send him back to China
if he did not cooperate with the Chinese delegation.
He said that the Chinese ``took our picture forcefully and
recorded our voices and threatened to hit us and do other
things.'' He pleaded with the CSRT panel to ``not let those
things happen to us again because it would hurt us really
bad.''
Most of the Uighurs refused to cooperate with the Chinese
interrogators in September 2002. As punishment, the Americans
put all but two of them in solitary confinement for up to 20
days. No light, no air, no human contact.
I asked three of my clients prior to testifying here today
to describe their interrogation experiences in greater detail.
Abu Bakker Qassim, who is now in Albania, Ablikim Turahun, who
is now in Bermuda, and Khalil Mamut, who is also in Bermuda,
have all submitted written statements to the subcommittee. I
would like to take a brief moment to highlight a few excerpts
from these statements.
First is from the statement of Mr. Qassim. Mr. Qassim was
released into Albania in 2006 along with four other Uighurs.
Picking up in the middle:
``After I refused to answer any more questions, the
Chinese interrogators failed to proceed further. They
brought out their camera to take a picture. I refused
to be photographed. One Chinese interrogator went
outside and brought in two American soldiers. These two
soldiers held me tight, and the Chinese forcefully took
a picture of me. I had never thought that American
soldiers would work with Chinese and treat us like
this.'' deg.
``Then I was locked in a cold, dark steel prison cell
for 5 days. I was released to a regular prison cell
after the Chinese left. During the 5 days when I was in
the cold, dark cell, while thinking about the Chinese
harsh treatment toward us in a U.S. prison, I felt sick
with the American soldiers.'' deg.
``After the Chinese had left, during an interrogation
I asked the interrogators why they released all of our
materials to the Chinese, even though they had promised
to keep our information confidential. The Chinese could
now randomly oppress our family members. The
interrogators did not feel a bit ashamed about it. They
apologized by saying that someone in Washington had
given our materials to the Chinese.''
Now, Mr. Chairman, I would like to read a brief excerpt
from the statement of Khalil Mamut:
``In the beginning of autumn of 2002, a delegation
from China representing the Chinese Government arrived.
It was afternoon when I was informed by one of the MPs
that I was to get ready for an appointment. I was later
escorted by two military soldiers to the interrogation
room.'' deg.
``Once I arrived there, two men came in. One was from
the American Government, and the other was from the
Communist Chinese Government. The American spoke
Chinese, saying I am from the American Government, and
we have an agreement with the Chinese Government.
Therefore, we have allowed them to come here to
interrogate you. The Uighur man translated the American
man's instructions into our language.
``After the introduction, the Americans departed.
Following their departure, two different men arrived.
One looked Uighur and the other Chinese. They abused me
by telling me that they would take me by force when I
returned to China and I would be beaten and eventually
killed. I informed them that I do not wish to go back
to China. Then they became even angrier, and they
attempted to take my picture. I refused to allow them
to do this. However, they were eventually able to take
some pictures as I was shackled and
chained.'' deg.
``Then the two men ordered the American soldiers to
take me to another room. Once I arrived at this new
location the air conditioning unit was turned onto full
blast and I was left in this room for 7 straight hours.
The room became extremely cold. In this room I once
again had shackles on my feet with my hands also
chained. In the evening I was returned to my cell.''
Mr. Chairman, if I could one more brief statement from----
Mr. Delahunt. Mr. Pinney, let me ask you a question on that
last recitation. It was the Chinese Communist agents that
instructed the American military personnel to take your client
to another room?
Mr. Pinney. That is correct. Mr. Chairman, there is a
report issued by the FBI last year that confirms that American
military personnel operated under the instruction of the
Chinese in abusing our clients during this visit.
Mr. Delahunt. Thank you. Proceed.
Mr. Pinney. Finally, I would like to read a brief excerpt
from the statement of Mr. Turahun:
``They called for American soldiers and ordered them
to hold me so that my picture could be taken. The
soldiers grabbed me, pulled my beard, pressing my
throat, twisting my hands behind my back, and as a
result my picture was taken by force.'' deg.
``The air conditioner in the room was placed on high,
making the room very cold. I was left in this room for
6 hours. As a result of the room being so very cold, I
felt somewhat frozen at times.
``After this 6 hour period I was placed in an
isolation room that was made of metal and measured six
feet by eight feet. There I remained for 20 days in
isolation. The room was so very cold and dark. I was
not able to see daylight or another person. During the
20 days it was very difficult to sleep because I was
not given any blankets or sheets by which to cover
myself in this isolation room. I spent those days
suffering.'' deg.
``I requested to speak to the Uighur interpreter so
that he could translate to the guard commander. I
wanted to speak to the commander, asking him why I had
been placed here. The commander replied that it was not
his decision, but that of the Chinese delegation, who
instructed that I should be put in isolation. Following
this the interpreter and guard commander departed.''
Mr. Chairman, to allow the Chinese in to interrogate the
Uighurs is not like allowing the British, for example, to meet
with their citizens at Guantanamo. England is an American ally.
It is a democracy that promotes liberty and, most importantly,
it does not have a long and well recorded history of torturing
and oppressing its Muslim citizens.
China has an abysmal human rights record generally and when
it comes to the Uighurs specifically, everything from forced
abortions to torture to execution for ideological dissent. The
subcommittee has already heard testimony on these abuses.
Moreover, it has been widely acknowledged that the Chinese
have used the so-called war on terror as a pretext for abusing
the Uighurs. Our own State Department has concluded that, and I
quote:
``The Chinese Government used the international war
on terror as a justification for cracking down harshly
on suspected Uighur separatists expressing peaceful
political dissent on independent Muslim leaders.
Uighurs were executed and sentenced to long prison
terms during the years on charges of separatism.''
In allowing the Chinese to interrogate the Uighurs then,
Mr. Chairman, we by extension aided in the persecution of these
men.
To more fully understand the significance of the Chinese
visit to Guantanamo it must be viewed in context. When the
pieces of the puzzle are put together it appears that our
country, as Mr. Fein suggested earlier, made a deal with China.
As part of the deal we agreed to label the men as terrorists.
In exchange, the Chinese agreed not to oppose our invasion of
Iraq.
In my written testimony I have included a detailed
chronology. I would just like to pick a few points from this.
(1) After 9/11, the Chinese Government announced their intent
to encourage the international community to view these East
Turkistan organizations as terrorist organizations.
On December 6, 2001, the United States refused to label the
East Turkistan Movement as a terrorist organization. Francis
Taylor made the following statement: ``The U.S. has not
designated or considers the East Turkistan organization as a
terrorist organization.'' That was December 6, 2001.
On August 26, 2002, after Deputy Secretary of State Richard
Armitage met with senior Chinese officials in Beijing to
discuss the invasion of Iraq, he immediately announced from
Beijing that a group called the ``East Turkistan Islamic
Movement'' will be placed on the State Department's list of
terrorist organizations.
The next month, Mr. Chairman, a Chinese delegation was
allowed to visit our clients in Guantanamo and forcefully
interrogate them over a period of 10 days. The next month the
Chinese President at the time, President Zemin, traveled to
Texas to meet with our own President, George W. Bush. Two
months later, an FBI report confirmed that the Uighurs were
being used as a pawn in order to gain support from the Chinese
for our invasion of Iraq.
This is a quote from an unnamed FBI agent in an FBI report
dated December 2002:
``U.S. officials are considering whether to return the
Uighurs to the Chinese, possibly to gain support for
the anticipated U.S. action in the Middle East. The
Uighur detainees at Guantanamo are convinced that they
would be immediately executed if they are returned to
China.''
And the last item I would like to point out from the
chronology is a May 2008 FBI report that I referenced earlier.
This is the report, from our perspective, that confirms the
Chinese visit to Guantanamo. A Department of Justice report
confirms that ``several Uighur detainees were subjected to
sleep deprivation or disruption while being interrogated at
Camp X-Ray by Chinese officials.''
And as one agent noted, ``The treatment of the Uighur
detainees was either carried out by the Chinese interrogators
themselves or,'' Mr. Chairman, ``was carried out by U.S.
military personnel at the behest of the Chinese
interrogators.''
So what does this all mean? I think it means that our
country sacrificed a small, oppressed minority in order to win
the support of the Communist Chinese Government for our
invasion of Iraq. In doing so, America turned its back on the
values and freedoms that serve as the bedrock of our republic.
We should have been offering to help the Uighurs in their
struggle against the oppression. Instead we sacrificed them to
advance our own interests.
I think we can do better. We have the strength and
character as a nation to stand up to countries that persecute
their citizens and smother liberty. We are strong enough to
withstand the Chinese pressure. We are capable of doing the
right thing.
According to the Chinese, the lonely man who confronted a
tank in Tiananmen Square 20 years ago is a terrorist. So is the
Dalai Lama. So is Rebiya Kadeer and so is the old Uighur woman
armed only with a cane--she needs to walk--who stood alone
against the Chinese Army in Urumqi less than 2 weeks ago, and
yet our own Government has yielded to this Chinese propaganda
not just in 2002, but also, Mr. Chairman, in 2009.
I am sad to say that many Members of this Congress embraced
the lies when they lobbied against the release of the Uighurs,
our clients and others, into the United States earlier this
year. Four of these Uighurs, as we have mentioned, are free men
in Bermuda today. They are peaceful and law abiding.
But, as unimaginable as it is to say, 13 of their Uighur
brothers, brave dissidents from the leading Communist power,
long cleared by the American military, both the Bush and Obama
Administrations and by several U.S. courts, these men remain
prisoners of the propaganda machine that has beguiled two
Presidents, the Congress and the American people.
Mr. Chairman, thank you for this opportunity to speak with
you and the members of the subcommittee, and thank you for your
diligent efforts to uncover the truth behind the imprisonment
of the Uighurs at Guantanamo.
[The prepared statement of Mr. Pinney
follows:]Jason Pinney.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Delahunt. Thank you, Mr. Pinney. Let me just note that
the Obama Administration of course is designing a plan in terms
of dealing with those who have been cleared for release, and I
hope they have an opportunity to read the words of George
Washington and to examine the transcripts of these hearings
that we have held and offer to the remaining Uighurs an
opportunity to resettle in the United States so that we can
reclaim our moral authority despite what has occurred in the
past.
Mr. Fein. If I could interject, Mr. Chairman? You remember
the Congress passed the Military Commissions Act of 2006, a
quite disgraceful statute, but it was a statute.
I would suggest that Congress may want to consider stealing
a march on time on the Obama Administration. By statute you
clearly have authority to dictate those Uighur detainees come
to the United States of America. It could be one of the
Congress' finest hours.
You don't need to wait. You didn't wait on the Military
Commissions Act. You don't need to wait now.
Mr. Delahunt. Thank you, Mr. Fein.
Mr. Parker, you are our cleanup hitter, so to speak.
Mr. Parker. I only wish I knew what that meant.
Mr. Delahunt. It is a term we use in Red Sox Nation. You
probably have not heard that. Well, I am sure you have heard
the term Red Sox Nation.
Mr. Parker. Red Sox Nation I have. Having lived in New
Haven, Connecticut, I have heard of this team they call Red
Sox.
STATEMENT OF MR. TOM PARKER, POLICY DIRECTOR, COUNTER-TERRORISM
AND HUMAN RIGHTS, AMNESTY INTERNATIONAL USA
Mr. Parker. Mr. Chairman, thank you very much for the
opportunity to testify here today. It is an honor to address
the subcommittee on such an important issue and to share my
organization's thoughts on the plight of the Uighurs and the
implications for an effective national security policy.
I would like to address several points in my testimony: The
nature of human rights conditions in Xinjiang Uighur Autonomous
Region, the security situation there, and the interrogation of
Uighur detainees at the Guantanamo Bay detention facility.
Amnesty International views with sadness and great concern
the recent ethnic violence in Xinjiang, which has been one of
the worst outbreaks of violence in China in recent years.
Violence has once again placed this region in the headlines,
but the causes and human rights conditions that underlie these
riots have been developing for decades, both from the
fundamental conditions that exist in the region and the
policies and programs and reactions of the central and local
government in the XUAR.
The recent violence is not an isolated event, but part of a
wider story. In 1955, the People's Republic of China
established the Xinjiang Uighur Autonomous Region in
recognition of the Uighurs' predominance in the region, a
status that according to the Chinese constitution entitles
ethnic minorities to organs of self-government in order to
exercise autonomy.
According to the latest Chinese census, in 2000 there were
more than 18 million people living in the Autonomous Region, of
whom 47 percent are Uighurs, 40 percent Han Chinese and 12
percent from other ethnic groups. The Han Chinese population
has increased significantly from an estimated 6 percent in 1949
due to central government policies that include providing
financial incentives for Han Chinese to migrate to the region.
This sustained influx of Han Chinese migrants into the
region has contributed to the destruction of local customs and,
together with employment discrimination, has fueled discontent
and ethnic tension.
On paper, Islam is one of the official religions of China
and people are accorded special privileges because of their
cultural background, but in reality the government has pursued
a policy of undercutting the Uighurs' cultural, linguistic and
religious life.
According to one of our organization's reports, in 2009 the
authorities still maintain a tight control of the mosques and
religious clergy, intervening in the appointment of local
imams, stationing police within and outside mosques and closely
monitoring all religious activities.
Government employees in the Autonomous Region, including
teachers, police officers, state enterprise workers and civil
servants, risk losing their jobs if they engage in religious
activity.
Chinese authorities have also put many obstacles in the way
of Uighurs attempting to make the pilgrimage to Mecca, the
Hajj, which is a requirement for all practicing Muslims.
Children under the age of 18 are not allowed to enter mosques
or receive any sort of religious education. Many young Uighurs
are afraid that if they do enter a mosque that they will be
expelled from school.
A supposedly bilingual education system in fact actually
makes Mandarin the sole language of instruction and is steadily
undermining the foundations of Uighur culture.
The post-Mao era in the 1980s liberalized policy throughout
China, allowing citizens greater freedom, including some
freedom of religion and expression, and strengthened legal
protections. However, since the mid 1990s Uighurs have
experienced a sharp reversal in this policy as authorities have
embarked on a very aggressive campaign against what have been
termed the three evils: Terrorism, separatism and religious
extremism.
As a result, increased numbers of Uighurs have been
subjected to arbitrary arrests, unfair trials and torture, and
their economic, social and cultural rights have been slowly
eroded. This has worsened since 9/11 as the authorities have
cast Uighur discontent within the framework of international
terrorism. Most academics and other observers consider these
claims to be unsubstantiated.
In 2008, the authorities used a series of violent incidents
allegedly carried out by Uighur separatist groups as a pretext
for launching a sweeping crackdown population in the Xinjiang
Autonomous Region. According to the official media, almost
1,300 people were arrested in 2008 on state security charges
that included terrorism, separatism and religious extremism and
1,154 were formally charged and faced trials or administered
punishments.
On August 14 last year, Wang Lequan, the Communist Party
Secretary of the Autonomous Region, announced a life and death
struggle, his words, against Uighur separatism. Currently there
are thousands of Uighur political prisoners imprisoned in China
without charge or trial or after unfair trials. Torture is
commonplace, and statements extracted through torture are used
to convict Uighurs, including convicting them of the death
penalty.
Coercive methods reportedly used by the Chinese public
security agents include physical beatings, prodding people with
electric shock batons, the insertion of needles under
fingernails and the use of stress positions.
Shahir Ali is a young Uighur or was a young Uighur
political activist who fled from China to Nepal in 2000. He was
forcibly returned to China by the Nepalese authorities in 2002.
He was tried and sentenced to death in 2003 for the crimes of
separatism, organizing and leading a terrorist organization and
the illegal manufacture, trading and possession of weapons and
explosives.
The evidence was presented in a secret case. None of this
evidence has ever been made public, but there is no independent
information to suggest that Ali was involved in terrorist
activities of any nature.
His circumstances are broadly similar, we would suggest, to
those of the Uighurs currently held in Guantanamo, and one
might reasonably expect that if they were returned to China
they would share Ali's fate.
Mr. Delahunt. Mr. Parker, are you aware of a statement by
the former Speaker of the House of Representatives, Mr.
Gingrich?
Mr. Parker. You would have to elaborate further, sir.
Mr. Delahunt. Well, recently, within the past several
months, he made the statement that the Uighurs are not an
American problem and they should be sent back to China.
Would you care to make a comment on that particular
statement?
Mr. Parker. Well, if you send them back to China you could
quite literally be signing their death warrant.
Mr. Delahunt. In your opinion, and I would solicit comments
from our other two panelists, if the United States should send
them back to China, if they followed the wishes of Mr.
Gingrich, would it violate domestic law and would it contradict
our treaty obligations under the Convention Against Torture?
Mr. Parker. With two distinguished legal colleagues on the
panel, I won't talk about American law, but the principle of
non-refoulement is an international custom or international
principle which states you do not return people to face torture
or inhumane or degrading treatment, so, yes, it would be a
violation of international law.
Mr. Fein. It would be a violation of United States law as
well. It is one of the reasons why we haven't sent the Uighurs
back to China.
In fact, the State Department has publicly stated that they
fear that they would be tortured or killed, so that is the
official position of the United States Government as well.
Mr. Delahunt. Then I would obviously conclude that Mr.
Gingrich was ignorant of the realities affecting the Uighurs
and was unaware of the treaty obligations, as well as domestic
law.
You can continue to proceed, Mr. Parker.
Mr. Parker. It is against this underlying set of conditions
that we have to view the current situation for the Uighur
detainees still at Guantanamo. No other group of prisoners was
so clearly wrongly apprehended and detained, reportedly sold to
United States forces for a bounty of $5,000 per person after
they fled from the village that they were living in in
Afghanistan.
Soon after they were picked up in 2002, our own
intelligence and security personnel concluded that they posed
no threat to the United States. However, from the outset ill
treatment was a predictable part of a detention regime operated
away from independent judicial oversight, and the Uighur
detainees were not spared abuse.
In May 2004, Amnesty International broke the story of the
access of Chinese Government officials to these detainees in
Guantanamo in 2002 and that American military personnel had
assisted in the preparation of these individuals for interview
by the Chinese authorities.
In the years since then and in the absence of judicial
oversight, the indefinite and isolating nature of the
detentions at Guantanamo has remained cruel, inhumane and
degrading. In February 2007, for example, Uighur detainee Ali
Mohammed was being held in isolation in Camp Six, a super max
prison one might call it, for at least 22 hours a day. He never
sees direct sunlight and has no access to fresh air.
During his 2 hours per day of recreational time, which on
alternating days is in the middle of the night, Ali is placed
in a cage where he can sometimes see other prisoners, but is
punished if he tries to touch or greet them. He is compelled to
complain to get clean clothes. He is denied privacy when he
uses the toilet. Female guards can watch him using the toilet.
His food and drinks are always cold. He eats every meal alone.
Like all Guantanamo prisoners, he is not allowed any
visitors other than occasional trips by counsel and the Red
Cross. He is not allowed to make phone calls. As the Supreme
Court recently affirmed, even convicted murderers cannot be
made to endure conditions like this without first providing
them with the benefit of due process.
The physical and psychological well-being of detainees kept
in such conditions has long been of concern. The treatment of
the Uighurs has illustrated the pursuit of unaffected Executive
power that has characterized the USA's conduct in the war on
terror and led to systematic human rights violations, including
arbitrary detention, torture and other ill treatment.
Resolving their situation should mark not only a new start
for these men, but also a full recognition by the United States
of its obligation to ensure that anyone whose rights under
international law have been violated in U.S. custody has access
to effective remedy.
Remedy for the Uighur detainees arbitrarily detained in
violation of international human rights law is long overdue.
The legal concept of remedy as enshrined in the International
Covenant on Civil and Political Rights, of which the United
States is both a signatory and historically a strong supporter,
includes not only the restoration of liberty but also
reparation.
Four Uighur former Guantanamo inmates are now in Bermuda,
four in Albania and one in Sweden. But consider for a moment
what those men have lost. They have lost 7 years of their
lives. Quite apart from the personal deprivation of liberty,
that is also 7 years of lost earning potential, one-fifth of a
working life. Their families too have been without their
primary bread winner all of that time.
Furthermore, what kind of future do they have to look
forward to? They certainly haven't had the opportunity to learn
or develop a trade while in detention, nor are they returning
to a society they know well. Some may not even speak the local
language.
And however idyllic Bermuda may appear in press
photographs, it is a world away from the central Asia steppe
the Uighurs are used to. A refugee center in Albania certainly
lacks any appeal whatsoever.
Some released inmates may be grappling with medical or
mental health problems. We know five inmates have committed
suicide in the detention facility in Guantanamo since it
opened.
In March this year, the Department of Defense has reported
that 34 inmates were on hunger strike. Such figures give some
insight into the harrowing nature of the detainees'
experiences, yet no provision has been made to support their
rehabilitation.
A recent study of the post release lives of 62 former
Guantanamo inmates compiled by Professors Eric Stover and
Laurel Fletcher of UC-Berkeley found that two out of every
three former detainees reported psychological problems
resulting from their confinement. Only six of those 62 have
been able to find permanent jobs. Some are actually indigent
and destitute.
Releasing inmates cleared for release such as the Uighurs
is not in and of itself enough. We have a moral and legal
obligation to aid the reintegration of former inmates back into
society. These men have been convicted of no crime, and in our
system that means they are innocent. No ifs. No buts.
Innocent men wrongly held for 7 years have a right to
compensation, yet we understand some detainees have even been
asked by camp authorities at Guantanamo to sign a waiver that
they will not seek redress as a condition extracted under
duress for their release. How low have we sunk?
The Obama Administration cannot simply shove cleared
detainees out of the gates of Camp Delta and forget about them.
The United States must take responsibility for rebuilding lives
it has ruined. If simple decency is not reason enough, consider
also that Guantanamo stigma means that former detainees with no
other source of support have little choice but to turn to
radical mosques and extremist networks for help.
It is in our interest to help these individuals make a
fresh start. Indeed, our very security may even depend on it.
In the pursuit of any conflict there are always mistakes and
always casualties, but it is incumbent on us to act honorably,
to tell the truth and to freely acknowledge our mistakes.
In the long, sorry saga of the detention facility at
Guantanamo Bay, no cases are more deserving of our sympathy and
our apologies than the Uighurs both for the length of their
detention and the manner of their treatment. These men have
never posed any genuine or meaningful threat to the United
States of America.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Parker follows:]Tom
Parker.
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Mr. Delahunt. Thank you, Mr. Parker.
I am sure you heard the remarks by my colleague, Mr.
Rohrabacher, where he extended his apologies, his personal
apologies, to the Uighurs, and I would hope, Mr. Pinney, that
you would convey back to your clients that America is getting
it right.
Mr. Pinney. Of course, Mr. Chairman.
Mr. Delahunt. I know Mr. Fein has another obligation, and I
know you have been waiting a long time.
I think it was you, Mr. Pinney, that made the distinction
between allowing say British, United Kingdom or better yet
Irish; Irish security agents in to conduct interviews as
opposed to those nations that have an abysmal human rights
record.
Information has come to my attention that the security
apparatus of Uzbekistan has been allowed to visit detainees
from Uzbek, and the only way to describe the leader of
Uzbekistan, Mr. Karimov, is that he is the thug of Tashkent and
has massacred thousands of innocent people who were protesting
against the repressive nature of his government.
I think you said it very well. Where are we and isn't it
time, and I do hope that this is the case, that the Obama
Administration is doing a full reassessment of this I think
horrific policy that results in human rights violators free and
unfettered access to detainees. There is no gain. There is only
disdain, if you will, for the U.S. that comes from this.
But I guess I would pose a question to you. Has Amnesty or
anybody reflected and thought about a policy that would meet
the standards of the human rights community so that interviews
done appropriately and done in a fashion that is reflective of
our values could be conducted by agents of foreign governments?
Mr. Parker. Well, our standard basically is we should be
using the criminal justice system to detain people that we
suspect of terrorism, and there are legal instruments that
allow foreign countries to request access to people in
detention.
Lettre rogatoire, for example. As a law enforcement or a
former law enforcement official myself, I have often applied to
foreign governments for access to talk to both witnesses and
detainees, and it is done through normal judicial mechanisms
and that serves perfectly well.
Mr. Fein. But because we do still have a President that
says there is a category of persons who are not criminals but
we will retain for some reason, for the Congress of the United
States simply having a presumption of nonaccess by any foreign
intelligence security service unless the President makes a
waiver and certifies that that intelligence service satisfies
certain human rights standards so that the burden of proof is
on the President.
The President has to disclose it and share it with
Congress. At least it is a statement out of this Congress that
the norm is no, you can't share it and no one will be out there
who is outside the United States unless the President certifies
that there is not going to be abuse basically.
I come back to Congress has got to assert itself. It is not
just the Obama Administration.
Mr. Delahunt. You are really making us the first branch of
government.
Mr. Fein. It is the first branch. That is what I read about
in the Constitution. It is the very first article, and that was
authority under the necessary and proper clause. You can
regulate any execution of any executive power whatsoever.
Mr. Delahunt. Mr. Pinney?
Mr. Pinney. Mr. Chairman, from the legal cases we have had,
we have had the ability to work with the Administration in
resettling one detainee to Saudi Arabia in 2006 and of course
with the four men that went to Bermuda in 2009, and we were
able to coordinate the logistics behind that in a way that was
fair, open and approved by the court.
Just to come back to a comment you said earlier, China has
a terrible human rights record, but it is not just that they
have a terrible human rights record. It is that they have a
record that our Department of State has documented for years
and years about these particular individuals.
They have a record of abusing and oppressing and executing
and torturing unfairly the Uighurs and we let those men in to
talk to them in 2002, so it goes beyond really what could ever
be considered a fair process.
Mr. Parker. Could I add one thing as well? It is incumbent
upon me as the Amnesty representative to point out it is not
just a foreign problem. It is also how we treat individuals at
Guantanamo Bay. It is not just foreigners coming in and doing
this. American service personnel have been complicit in the
mistreatment of detainees.
I am not aware if the Angard of Shekinah has ever sent
anybody to Cuba, whether there has ever been an Irish detainee
in Cuba, but the British Government certainly has sent security
service officers there, and there is currently a metropolitan
police investigation into the activities of those officers not
simply because of what they may have done themselves, but what
they were associated with by working with American service
personnel.
So this is not an issue just about Chinese access. This is
an issue about how we treat detainees in our power period.
Mr. Delahunt. Gentlemen, thank you. It has been a most
informative hearing. Your testimony was excellent. It has been
a long day.
I have a request. Well, let me make the request. There has
I thought been an exceedingly inciteful opinion piece by David
Keene, who I usually don't agree with, but it relates to this
particular issue.
If there is no objection, and hearing none, I am going to
enter this into the record of the committee. It has a number of
good things to say about Mr. Rohrabacher, and I hope I don't
hurt his political career by saying that they are true in this
particular case.
But in any event, the opinion piece by Mr. Keene, who
happens to be the chairman of the American Conservative Union,
will be entered into the record.
[The information referred to follows:]The
Hill.
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Mr. Delahunt. And I should note too that genuine
conservatives are informing themselves about this particular
issue and are speaking out and I think are reinforcing those
conservative values that have traditionally been a worthy
reflection of what America is about.
I applaud them for doing that because there are some in the
Minority party that see a political opportunity here, but those
people, their behavior will be noted and the people like David
Keene and Dana Rohrabacher and others that don't come to mind
right now, they will be the ones who will speak to principle.
In the end, history will respect them because I think we
are making progress. I think we have a long road to go, but you
have helped us along that road today.
So, gentlemen, thank you. We are adjourned.
[Whereupon, at 2:26 p.m., the subcommittee was adjourned.]
A P P E N D I X
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